BEZWADA TULASAMMA Vs. KONDURU SUBBARAMI REDDY

JUDGEMENT

(1.) The plaintiff in Small Cause Suit No. 35 of 1965 on the file of Subordinate Judge's Court, Kavali, is the petitioner in this revision under section 25 of the Provincial Small Cause Courts Act. One Kotamma, a sister of the petitioner, died posessed of some properties. The petitioner claimed the properties under a will said to have been executed by Kotamma. The respondent, Kotamma's husband's brother disputed the will and filed O. S. No. 244 of 1955 in the District Munsif's Court, Kavali, for recovering possession of the properties. The suit was dismissed on 29th October, 1957 but on appeal by the respondent the Subordinate Judge of Kavali decreed the suit on 9th December, 1959. The appellate Court's decree was confirmed by the High Court on and September, 1963 in S. A. No. 443 of 1960.

(2.) Meanwhile one Venkatasubba Reddy, a creditor of Kotamma, filed Small Cause Suit No. 551 of 1957 for recovery of a sum of Rs. 408 due on a promissory note executed by Kotamma. He impleaded both the petitioner and respondent as defendants to the suit. The suit was filed on 24th September, 1957 and decreed on 23rd December, 1957. Under the decree the defendants therein were directed to pay the amount from out of the estate of late Kotamma. The petitioner paid the decretal amount and full satisfaction was recorded by the Court on 8th April, 1958. It will be noticed that the decree was passed and the decretal amount paid subsequent to the dismissal of O. S. No. 244 of 1955 and during the pendency of the appeal in the Sub-Court i.e., at a time when the title to the properties of Kotamma was found to be in the petitioner and she was in possession of Kotamma's 'estate. After the disposal of the second appeal by the High Court, the petitioner instituted the present suit on 20th January, 1965 for recovering the amount which she was compelled to pay to satisfy the decree in S. C. Suit No. 551 of 1957.

(3.) The learned Subordinate Judge while holding the several points for determination, with which we are now not concerned in favour of the plaintiff, dismissed the suit as barred by limitation. According to him the appropriate article applicable was Article 61 of the old Limitation Act and if that article was applied the suit would be barred by limitation.