L KESAVA CHETTIAR Vs. M M RAMANATHA MUDALIAR

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment and decree of ramaswarni J. in C. M. A. No. 442 of 1953. The decree in that appeal confirmed the decree of the District Judge of North Arcot in A. S. No. 377 of 1951, which reversed the decree of the Subordinate Judge of Vellore in O. S. No. 41 of 1951.

(2.) THE appellant before us is the plaintiff in O. S. No. 41 of 1951. The suit was laid for recovery of a sum of Rs. 4371-12-6 due on dealings between the plaintiff and the defendant, had from 29-4-1946 to 26-5-1948. The suit itself was instituted on 7-3-1951 within three years from the date of the last dealing shown in the accounts of the plaintiff. The defendant resisted the suit inter alia on the ground of limitation. The plaintiff pleaded that the account between the parties was a mutual, open and current account, and that, since Article 85 of Sch. 2 of the Limitation Act applies, the suit was in time. He also relied on acknowledgment by part payments and contended that the suit was also saved by Section 20 of the Indian Limitation Act. On the first question, the learned Subordinate Judge held that Article 85 or the limitation Act applied and granted a decree for a sum of Rs. 3584-10-0 after adjusting payments made, which were pleaded by the defendant or were found against. The learned District Judge of North Arcot, on appeal, took a different view, and held that Article 85 would not apply for the recovery of the balance due on the plaintiff's account and remanded the suit for fresh disposal and directed the subordinate Judge to investigate the question whether the balance claimed was otherwise saved. By this he obviously referred to the plea of saving of limitation based upon Section 20 of the Indian Limitation Act.

(3.) ON appeal, Ramaswami J. confirmed the decision of the District Judge, but, in addition, went into the question of applicability of Section 20 of the Limitation Act, which was based upon the construction of certain receipts signed by the defendant which are contained in Exs. A. 5 and A. 6, and concluded that these were not sufficient to save limitation. Therefore, he dismissed the suit of the plaintiff.