DRONAVAJJULA VIDYAMBA Vs. VALLABHAJOSYULA LAKSHMI VENKAYAMMA

JUDGEMENT

(1.) Three questions are raised in this Second Appeal, (1) whether the plea of discharge pleaded by the appellant is true; (2) whether the promissory note was executed on 3rd August, 1916, and the suit is consequently barred by limitation ; and (3) whether, by reason of the terms of the order, dated 7th November, 1950, in O.P. No. 95 of 1950 on the file of the District Judge, Krishna, at Masulipatam, having not been complied with, the trial of the suit by the Subordinate Judge was without jurisdiction, and the decree is consequently liable to be set aside.

(2.) Both the Courts held against the appellant on the plea of discharge and we tee no reason to disturb this concurrent finding of fact. Sri Neti Subrahmam am, the learned counsel for the appellant, strongly contended that the promissory note was executed on 3rd September, 1946, and that the suit was consequently barred by limitation. In support of that argument, he relied upon an entry marked as Exhibit A-3 (a) in the account book Exhibit A-3. The entry was noted as 3rd August, 1946, and the figure 8 was corrected into 9. If, as Sri Subrahmanyam contends, the promissory note was duly executed on 3rd September, 1946, we are unable to follow why the figure 8 should have been originally entered and later on corrected into 9. Both the Courts refused to act upon the entry in the account book on the ground that the account book was not regularly maintained. The view of the Courts below is perfectly justified aswe find, on a perusal of the account book, that the entries were not made from day-to-day. After having heard Sri Subrahmanyam at great length on the facts, we are inclined to agree with the Courts below that the promissory note was executed only on 3rd October, 1946. It appears that the appellant purchased a property on 4th October, 1946 and that the contract of sale was entered into on 15th September, 1946. If, according to the appellant's case, the amount due under the promissory note was borrowed on 3rd September, 1946, we fail to see why the entire amount was not paid under the contract of sale or the sale-deed executed earlier. The contract of sale shows that only a sum of Rs. 100 was paid thereunder. It is therefore, probable that the borrowing under the promissory note was made only on 3rd October, 1946 and that the amount was paid by the appellant's sonin-law to the vendor. We, therefore, confirm the finding of the Courts below that the suit was in time.

(3.) The third objection raised by Sri Neti Subrahmanyam is a legal one, and we shall deal with it hereunder. It appears that the appellant's son-in-law, impleaded as the second defendant in the suit, filed O.P. No. 95 of 1950 on the file of the District Judge, Krishna, at Masulipatam for transferring the promissory note suit O.S.No. 347 of 1949, District Munsif's Court, Bandar, to the Principal Subordinate Judge's Court of Bandar for joint trial with the partition suit filed by him, O.S. No. 6 of 1948. The order passed by the District Judge is as follows : "One suit is for partition and the other is on a pronoic. Respondents have no objection. Petition allowed. No costs".