SAVADA GOUNDER Vs. VEERAPPA GOUNDER

JUDGEMENT

(1.) THIS is a revision against the decree in S. C. S. No. 141 of 1956, on the file of the Sub-Court, Dindigul. The defendant is the petitioner. The suit was laid on the basis of a promissory note dated 22-4-1951. On 23-6-1955, there was an endorsement of payment on the back of the promissory note. The suit was filed on 14-6-1956. The defendant did not appear in the lower Court and was set ex parte; a decree was passed against him as prayed for. The defendant has come up in revision.

(2.) MR. V. C. Srikumar, learned Counsel for the petitioner, contends that, as the acknowledgment and the endorsement of payment was made three years after the date of the promissory note, it could not avail the creditor for the purpose of saving limitation. The contention on behalf of the respondent is that, by reason of ordinance 5 of 1953. followed by Acts 5 of 1954 and 1 of 1955 there was a period of one year, six months and twenty-six days, during which a suit could not be filed. The prohibition lasted till 1-7-1955. The Ordinance and the Act had come into force before the date on which the endorsement of payment was made. If the endorsement on the back of the promissory note is construed as a valid acknowledgment, there is no doubt that the suit will be within time. The contention of Mr. Srikumar is that it cannot be so held notwithstanding the fact that the endorsement was made at a time when that moratorium was in existence. In support of this contention, learned Counsel refers to the decision in chidambaram Chettiar v. Venkatasubba Naicker, 1937-1 Mad LJ 262; (AIR 1937 mad 367), where it was held that the period prescribed by Section 19 of the limitation Act could not include the extension that is given by Section 4 for filing a suit. In that case, the three year period of limitation for a promissory note expired during the time when the court was closed, and an acknowledgment of the debt was made after that date, but before the reopening of the court. That was held not to serve as a Fresh starling point of limitation. On the other hand, Mr. T. S. Kuppuswami Aiyar for the respondent refers me to the decision reported in Sambayya v. Pedda Subbayya, 1937-2 Mad LJ 703 : (AIR 1938 Mad 19 ). In that case, there was a statutory exclusion of time by reason of an insolvency which was later on annulled. The plaintiff sought to escape the bar of limitation by alleging that he was entitled to exclude the whole period, 'during the proceedings in insolvency were pending coupled with an acknowledgment which was given during the pendency of the insolvency proceedings. It was held that the period prescribed in Section 19 of the Limitation Act was not limited to the period of the First Schedule! of the Act, and that, in computing the period prescribed, the period which a party is entitled to exclude under any law for the time being in force should be taken into account. Under the Madras Indebted agriculturists (Temporary Relief) Act, V of 1954, S. 3 imposes a bar on suits or applications. It stated that no suits for the recovery of a debt shall be instituted against any agriculturist before the expiry of a year from the date of the commencement of that Act. That provision was extended further by Act I of 1955. Section 5 of the Act runs thus :