GANGADHAR PATRA Vs. DOLGOVINDA SAHU

JUDGEMENT

(1.) THIS is an appeal against the reversing judgment dated 14 -2 -1952 of Sri B. Panda, Second Additional Subordinate Judge of Cuttack, arising out of a 'Suit for recovery of money due on a hand -note. The point involved is one of limitation, a few facts relevant for the purpose of appreciating the point of limitation are that the handnote in suit is elated 5 -12 -1929 executed by one Gopi Patra, the deceased father of defendants 3 and 4 and the uncle of defendants 1 and 2 in favour of one Kshetrabasi Sahu. The handnote in suit is for a sum of Rs. 1,232/ -. It is to be mentioned here that the consideration of the handnote was the renewal of a previous handnote dated 26 -11 -1923 for a sum of Rs. 800/ - executed by Gopi himself. The plaintiffs, in order to save limitation relied upon three endorsements of payments made by Gopi and one of his nephews Bhagirathi (defendant No. 2). The first endorsement is dated 26 -11 -1932 by Gopi himself acknowledging a payment of Rs. 3/ - towards the debt. The second endorsement is dated 13th November acknowledging a payment of Rs. 5/ -, The third endorsement is dated 2 -11 -193(3 made by defendant 2 Bhagirathi, nephew of deceased Gopi. The plaintiffs further relied upon the position that Kshetrabasi, the original promisee, died on 26 -9 -1935 leaving behind him a minor son Bichitrananda and his widow, the present plaintiff 2. Bichitrananda who was a minor at the time when Kshetramohan died, also died during his minority on 3 -5 -1945. The present suit has been brought by Kshetrabasi's widow stepping in as the mother of Bichitrananda and also by Dolagebinda on the allegation that the money belonged to both Kshetrabasi and Bhaban, who is the ancestor of Dolagobinda. This suit has been instituted on 10 -5 -1946.

(2.) THE trial Court dismissed the plaintiff's suit on the ground of limitation finding that the endorsements are fictitious endorsements and they have not been proved. He had relied solely to come to this finding on one piece of circumstance that when in the year 1939 in a partition suit an inventory was prepared by a pleader Commissioner appointed by Court, the present endorsements, relied upon the plaintiffs, were not specifically mentioned. The lower appellate Court has refused to give a final finding merely upon this feature of the case in disregard of the direct evidence and the circumstance. The lower appellate Court on a discussion of the evidence on record has come to the finding that the endorsements are genuine endorsements made by Gopi and Bhagirathi and the payments were actually made. In our view, there is nothing to assail this finding of the lower appellate Court in second appeal, particularly when we find that the defendants' plea seems to be a fantastic one. The defendants' case in this regard was that the thumb impressions appearing on the back of the handnote as against each endorsement were taken at the time of the execution of the transaction itself to be made use of if the debt would be barred. There is no reason how and why the third thumb impression of Bhagirathi (defendant 2) would be taken at the time of the execution, and the purpose suggested seems to be most unacceptable.

(3.) BEFORE closing the case, I will refer to a point of law which arose during the course of argument: 'whether the plaintiff's suit will be hit by the provisions of Section 9, Limitation Act' which runs as follows;