AMAR CHAND Vs. BACH RAJ

JUDGEMENT

(1.) THIS appeal came for hearing before a learned Single Judge of this Court on 2310-64, but since an important question of law relating to the period of limitation was involved, he referred it to the Chief Justice to be laid before a Division Bench of the Court. This is how the case has come before us for hearing.

(2.) THE appeal is directed against the judgment and decree of the District Judge, balotra, dated 30-1-59, modifying the decree of Civil Judge, Jalore, dated 31-558. The plaintiffs-respondents filed a suit for the recovery of Rs. 8,221 as principal and Rs. 1,479 as interest, in all for Rs. 9,700 on the basis of their account books which were said to have been signed by the defendants. It was averred that the defendants Ganeshmal and his son Amar Chand had dealings with the plaintiffs' father for a number of years. After settling their accounts the defendants admitted their liability to pay an outstanding debt of Rs. 8,901 and executed a khata on 142-51. After certain payments the account between the parties was again settled on kati Sud 15 Samvat 2010, and a balance of Rs. 8,221 was found outstanding against them. They again executed a khata for the said amount which was payable with interest at the rate of Rs. 6 per cent per annum. The plaintiffs thus claimed the principal amount of Rs. 8,221 and Rs. 1,479 for interest. The defendants denied the execution of the documents on which the suit was founded. It was further averred that two gold 'badlas' costing Rs. 4,500 were pledged with the plaintiffs and that they were entitled to the deduction of that amount from the principal. The trial Court found that the documents on which the suit was based were executed by the defendants. At the same time, it was found in favour of the defendants that two gold 'badlas' were pledged by them with the plaintiffs. The defendants were, therefore, credited with the said amount of Rs. 4,500 and after deducting the same from the claim of Rs. 9,700 a decree for Rs. 5,200 was passed against the defendants in the plaintiffs' favour. The defendants were content with the decree and filed no appeal. The plaintiffs, however, felt aggrieved on account of the deduction of Rs. 4,500 and, therefore, they filed an appeal in the Court of the District Judge, Balotra. The learned District Judge found that in the documents on which the suit was based there was no mention about pledge of the said two ornaments. It was further observed by him that the defendants' oral version was not reliable because they had gone to the extent of denying the execution of the documents on which the suit was founded. It was further observed that the trial Court had committed an error in relying upon the oral statement of P. W. 2, Kundanmal and that he should not have been believed, because he was closely related to the defendants. The learned Judge, therefore, allowed the first appeal and decreed the plaintiffs' suit in full for Rs. 9,700. He also allowed to the plaintiffs interest pendente lite and future interest at the rate of Rs. 6 per cent per annum on the principal amount of rs. 8,221. It is against this judgment and decree that the present appeal is directed.

(3.) THE first and main contention raised by learned counsel for the appellant is that the appeal presented in the Court of the learned District Judge was time barred and that the learned District Judge has committed an error in holding the appeal to be within time.