LAKSHMI ES VARAMMA Vs. YOGIREDDI APPALASWAMI

JUDGEMENT

(1.) Plaintiff is the petitioner. He filed a suit for recovery of money due under a promissory note dated 8-2-1970. The suit was filed on 7-3-76 According to the plaintiff, there was a part payment on account of the suit debt on 2-2-1973. The plaintiff further stated in the Memo accompanying the plaint that he could not file the suit within three years from the date of the said part payment because of Ordinance 8 of 1975 which came into force on 26 8-1975. The said ordinance was repealed and replaced by an Act (Act 24 of 1976) on 9-3-1976. The plaintiff wanted to take advantage of section 5 of the Ordinance and that is what he stated in the Memo accompanying the suit. The trial court, however, numbered the said Memo accompanying the plaint as an I.A. It treated the said memo as a petition for condoning the delay in filing the suit. The defendant opposed the said petition. The trial court was of the opinion after hearing the parties on the said issue that since the Ordinance ceased to be in force (having been repealed) on 9-3-1976, the suit ought to have been filed on 9-3-1976. Since the suit was filed some days after the said date, the suit was held to be barred by limitation. The trial court accordingly under its order dated 9th June 1976 rejected the said petition for condoning the delay and also rejected the plaint.

(2.) Against the said order, the plaintiff filed the appeal. As per the statement in the Memorandum of appeal, he purported to file the appeal against the order passed by the District Munsif in unnumbered C.R.P./76 in O.S. No. 1072/76, dated 9-6-1976. The appeal however was filed under section 96 C.P.C. read with order 41 rule I C.P.C. The plaintiff paid a courtfee of Rs. 3/- under schedule II Art. 1 of A.P. Court Fees & Suit Valuation Act. No objection was raised to the maintainability of the said appeal. The Appeallte Court confirmed the reasoning of the trial court that benefit of Section 5 of the aforesaid ordinance is not available on or after 9-3-1976 and therefore the suit ought to have been filed on 9-3-1976 itself. The suit not having been filed on the said date but subsequently was held to be barred by limitation. Hence this C.R.P.

(3.) The Appellate court has held that the ordinance in fact barred the institution of the present suit. The said finding is not questioned in the C.R.P. by the learned counsel for the respondent. The bar arises by virtue of section 3 of the ordinance. Section 5 which provides for exclusion of time for limitation reads as follows: