ELUMALAI GOUNDER Vs. SUNDARA REDDIAR

JUDGEMENT

(1.) THIS second appeal has been filed by the defendant in 0. S. No. 452 of 1988 against the judgment and decree dated 31. 3. 1995 made in A. S. No. 70 of 1991 by the Subordinate Judge, Tindivanam, confirming the judgment and decree dated 19. 3. 1991 made in O. S. No. 452 of 1988 by the District Munsif, tindivanam.

(2.) THE brief case of the respondent/plaintiff is as follows: a. THE defendant after the execution of the mortgage deed on 9. 7. 1973 received a sum of Rs. 3000/- from the wife of the first plaintiff. b. After the execution of the same, the wife of the first plaintiff Rukmaniammal passed away. Since the first plaintiff has no issues through the said Rukmaniammal, he adopted the second plaintiff as his son. When he became old and felt that he would not survive for a longer period, he executed a Will under Exhibit A-1 in favour of the second plaintiff bequeathing all properties in his favour. c. Since the defendant failed to repay the said amount to the first plaintiff, he instituted the suit for the recovery of the amount of a sum of Rs. 6739/ -. Pending the suit the said Varadha Reddiar died. THEreafter, the adopted son was impleaded as second plaintiff in the suit. THE suit was filed on 5. 4. 1988. THE defendant received not less than Rs. 10,000/- per annum as income through agriculture. THErefore, as per the Acts 31/76, 13/80, and 50/80, the defendant is not entitled to get any benefits. Since the defendant is an agriculturist and after passing the moratorium period, the plaintiff filed the suit. THE suit filed by the plaintiff was in time. It is not barred by limitation.

(3.) THE learned counsel appearing for the appellant/defendant would vehemently contend that since the suit has been filed on 5. 4. 1988, the suit is barred by limitation. THE said suit should have been filed on or before 9. 7. 1985. Since the said suit was filed after the expiry of the limitation period, the suit for the recovery money on the basis of mortgage deed is not at all maintainable and therefore, the judgment and decree passed by the learned District Munsif and also the confirmation of the same by the subordinate Judge are not maintainable.