V SOMANATH RAJU Vs. KONCHADA RAMAMURTY SUBUDHI

JUDGEMENT

(1.) THIS is an appeal by defendants 3 and 4 against the judgment of the Additional Subordinate Judge of Berhampur dated 31 -10 -1952. The facts giving rise to this appeal are: The plaintiff filed a suit for recovery of a sum of Rs. 1670 -4 -3 on the foot of a promissory note executed by defendants 1 and 2 in his favour on 19 -9 -1945. The promissory note was executed for a sum of Rs. 1500/ -. On the same day, that is, on 19 -9 -45, defendants 3 and 4 sent a letter of guarantee to the plaintiff assuring payment of the said sum with interest, on demand, in the event of default on the part of the principal debtors. Defendants 1 & 2 made certain payments towards the interest accrued on the promissory note, the aggregate amount of which came to Rs. 775 -6 -0, the last payment having been made on the 19 -3 -1948. Since the money, both principal and interest, due on the handnote was not paid by toe defendants 1 and 2, the plaintiff demanded the sum due from all the defendants and on their failure filed the suit on 21 -2 -1951, Defendants 1 and 2 did not deny the execution of the promissory note in question as also, the factum of payment. Defendants 3 and 4 who are appellants before this Court filed a joint written statement wherein they averred that they were not aware of the alleged payments made by defendants 1 &

(2.) , nor of any endorsement made on the back of the promissory note. Even if there be any, it would not bind them, because neither have they paid the amount, nor was it paid on their behalf and thus the claim as against them stands barred by limitation. They also denied the demand. 2. The defendants 1 and 2 were set down ex parte. Defendants 3 and 4 adduced no evidence at the trial.

(3.) MR . A. Das, learned counsel on behalf of the appellants, raised rather a very interesting question of law regarding the liability or otherwise of the surety. First of all, he contended that the letter purported to have been written by the appellants on the 19 -9 -1945, is not a letter of surety. Secondly, he contended that even if it is a letter of surety, the claim it -barred as against them: