P T C KANNAPPA CHETTIAR Vs. DHANABAGGYAMMAL

JUDGEMENT

(1.) THIS is a Second, appeal instituted by the second defendant in a suit tried by the learned District Munsif of Vellore for recovery of Rs. 4100/- by the plaintiff dhanabagyammal. The facts of that litigation were, very briefly stated, as follows. Defendants 1 and 2 in the suit were brothers traders and money lenders by profession. Among their business it is alleged that they carried on a jaggery business under the name and, style of Chinnaswami Chettiar and Sons. According to the plaintiff, she deposited certain monies for investment in the business, and, on the date of the plaint Rs. 4111-14-10 was due; the plaintiff relinquished a small sum and limited her claim to Rs. 4100/ -. One very important fact is that there was a suit for partition between these brothers (O. S. No. 57 of 1949 on the file of the sub Court) which ended in a compromise decree. I have examined this decree, and found that under the second clause thereof, the present appellant (second defendant) definitely undertook to pay certain debts as set out in the schedules to that document. It is equally indisputable that the sixth item of schedule C to that document is the debt due to the plaintiff, then particularized is Rs. 3387-7-3 In the trial Court, the issues were whether the plaintiff deposited these amounts, and, among other additional issue No. 8. "whether the plaintiff can seek any relief against second defendant by virtue of the compromise decree in O. S. No. 57 of 1949" aforesaid.

(2.) THE learned District Munsif considered this matter in paragraphs 9 to 12 of this judgment, and came to the conclusion that this borrowing was a loan and not a deposit, and that the acknowledgment of liability in the partition decree in O. S. No. 57 of 1949 was made only after the debt became barred, and would not have the effect of prolonging the life of the debt.

(3.) THE matter came up in appeal before the learned Subordinate judge, Vellore, and be had to consider whether there was any liability of the 2nd defendant (Appellant) to be determined in the suit. The learned Subordinate Judge pointed out that the first defendant had specially acknowledged this liability in the written statement, and it is not now disputed that the Court below was justified In granting a decree in favour of the plaintiff as against the first defendant. But what the learned Subordinate Judge did, was upon the specific pleading of the first defendant, to consider whether thee third party procedure adumbrated in Order vet-A Civil Procedure Code should not be applied to the facts of the present matter. The learned Subordinate judge then observed that the first defendant would be entitled to proceed against the second defendant after payment of the court-fee, within the scope of Order VIII-A Civil Procedure Code and granted the first defendant a decree against the second defendant under Order VIIT-A Rule 8 civil Procedure Code. It is this decree which is the subject-matter of the second appeal.