ARUNACHALA GOUNDER Vs. S ALAGAPPA CHETTIAR

JUDGEMENT

(1.) THE plaintiff in O. S. No. 88 of 1964 on the file of the Court of the District munsif of Tirupur, who failed before the trial Court, as well as the first appellate court, is the appellant before this Court. It is necessary to refer to a few facts for the purpose of understanding the controversy between the parties. The property belonged to a firm by name P. L. V. R. Subramania Chettiar firm. After the death of Subramania Chettiar, his widow Chinnammal Achi, the third defendant in the suit, along with her sons, defendants 1 and 2, started dealing with the properties belonging to the firm, while the other surviving partner Valliappa Chettiar in his turn started dealing with certain properties. The suit properties were sold by the first defendant and the second defendant represented by his mother the third defendant for a sum of Rs. 1500 on 26-8-1947 under Ex. A-1 in favour of the appellant herein and he was put in possession of the suit properties. Subsequently, the other surviving partner, namely, Valliappa Chettiar, sold the identical properties to another party. On the basis of that sale deed executed by valliappa Chettiar, the vendee instituted a suit against the appellant herein for a declaration of title and injunction and in that suit, a Receiver was appointed and that Receiver took possession of the properties from the appellant herein. That suit was decreed and the appeal and the second appeal preferred by the appellant herein were dismissed, the second appeal having been dismissed on 21-10-1960 in S. A. 235 of 1958. After the dismissal of the said second appeal, the appellant herein instituted the present suit for recovery of a sum of Rs. 3000 from the respondents herein being the purchase money. In the plaint itself, the appellant averred that the purchase price along with interest came to much more than Rs. 3000 and that he was restricting the claim to a sum of Rs. 3000.

(2.) VARIOUS defences were put forward. One such defence put forward by the respondents herein was that the suit was barred by limitation. Both the Courts below proceeded on the basis that the proper Article of Schedule I to the limitation Act of 1908 that was applicable to the case was Art. 97 and that with reference to that Article the period of limitation commenced from the date when the suit instituted by the vendee from Valliappa Chettiar was decreed and calculating the period of limitation from the date, held that the suit was barred by limitation. As a matter of fact, the learned Subordinate Judge, who disposed of the appeal, considered the case not only with reference to Art. 97 of Schedule I to the limitation Act of 1908, but also with reference to Arts. 24 and 55 of the Schedule to the Limitation Act of 1963, as well as Art. 47 of the schedule to the Limitation act of 1963, corresponding to Article 97 of Schedule I to the Limitation Act of 1908. Once the Courts below came to the conclusion that the suit was barred by limitation, the same was dismissed. It is the correctness of this conclusion of the courts below that is being challenged by the learned counsel for the appellant before me.

(3.) IN paragraph 13 of his judgment the learned District Munsif had pointed out that the learned counsel for the plaintiff (appellant herein) stated that he was not asking for any relief of damages for breach of convenant of title, but he was only basing his claim on a failure of consideration and that he contended that Article 55 of the new Limitation Act did not apply to the facts of the case and that only the provisions of Article 47 of the new Act would be applicable. Article 47 of the schedule to the Limitation Act of 1963 corresponding to Art. 97 of the first schedule to the Limitation Act of 1908 is as follows: description of suit Period of limitation Time from which the period begins to run 47. For money paid upon an existing consideration which afterwards fails Three years once the claim is made with reference to Article 47 of the schedule to the limitation Act, 1963, the decision of the Privy Council in Jusqurn Boid v. Pirthichandlal, 46 IA 52 = (AIR 1918 PC 151) is directly against the appellant. That case was actually concerned with Art. 97 of the schedule to the Limitation Act and it was held that the starting pint of limitation was the date of the decree of the trial Court. For the purpose of coming to this conclusion the Privy Council has pointed out that as between the decree of the trial Court and the decree of the appellate Court, whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal. This decision of the Privy Council was followed by a Bench of this Court in Mohamed Ali Sheriff v. Budharaja Venkatapathiraju, 39 Mad LJ 449 = (AIR 1920 mad 634), which again considered the case of Article 97.