SHAILENDRA SINGH Vs. SMT. GULAB DEVI AND ORS.

JUDGEMENT

(1.) This civil revision by defendant No. 1 is directed against order dated 21.8.1997 passed by the Ist Subordinate Judge, Bettiah in Money Suit No. 5 of 1995 rejecting his application to reject the plaint.

(2.) The plaintiff-opposite party have filed the above mentioned suit for realisation of sum of Rs. 33,3333.00 with interest. According to the plaintiff, late Nand Kishore Singh, the common ancestor died, leaving behind three sons, namely, Ramji Singh, Shailendra Singh and Devendra Singh and widow Debkanya Devi. The plaintiff is the wife of Ramji Singh, Debkanya Devi, on 8.1.1974 made a gift of the property described in Schedule I of the plaint in favour of her daughters-in-law, namely. Rekha Devi, Urmila Devi and the plaintiff. On 1.9.1974 the donees executed the deed of power of attorney in favour of the defendant No. 1 i.e., the petitioner to realise the rent and give one-third of the amount of each of them. Defendant No. I realised huge amount of money from 1974 but nothing was paid to plaintiff or other donees. Separate suit as proposed to be filed for accounts (such a suit was actually filed being title-suit No. 10/95 pending in the same Court). The plaintiff further contended that two floors had been constructed over the lands in question and let out to defendant No. 2 State Bank of India, Bettiah Branch, the rental income from which too was being realised by defendant No. 1. He deposited Rs. 72,000 in the said bank in fixed deposit vide TDR No. 947120 on 18.1.1988 and later withdrew Rs. 14,000 being the amount of interest Rs. 72,000 was again invested in fixed deposit viz. TDR Nos.456323 and 456324 on 17.1.1990. He, however, withdrew the amount prematurely on 26.10.1991 and misappropriated the same. According to the plaintiffs, the aforesaid rental income the amount deposited with the bank and the interest accruing thereon was for the benefit of the plaintiff and the two co-donees. When she learnt about misappropriation in Oct., 1994 she asked the defendant to pay the amount which he declined. Hence the suit.

(3.) The petitioner filed written statement stating, inter alia, that the plaintiff was aware of the facts regarding the deposit of Rs. 72,000.00, withdrawal of the amount in the year 1980 itself. The suit was, therefore, barred by limitation under Art. 24 of the Limitation At. He filed a separate application on 24.4.1997 to reject the plaint as being barred by the law of limitation. From Annexure-I it appears that the application was labelled as one under Order 7, Rule 11 and also Order 14, Rule 2(2)(b) of the Civil Procedure Code. The prayer however was to decide the maintainability of the suit as preliminary issue and dismiss the suit as being barred by law of limitation.