NATHULAL Vs. MANGEE

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs against the appellate judgment of the Senior Civil Judge No. 2, Gangapur City, dated April 28, 1967, affirming the decree passed by the Munsiff, Karauli, dismissing the suit as time-barred.

(2.) THE relevant facts giving rise to this appeal are that the plaintiff-appellants brought the suit for the recovery of Rs. 1,100/- as principal, and Rs. 484/- by way of interest, totalling to Rs. 1,584/- on March 28, 1962 on the basis of a "khata" dated Asoj Sud 6, Samwat year 2015, corresponding to October 18, 1958, which is marked as Ex. 1. It was averred in the plaint that the defendants borrowed Rs. 3,000/- from the plaintiffs on October 18, 1958 with stipulation to repay the amount in 30 monthly instalments of Rs, 100/- each, and in default, it was agreed, that the amount shall be payable with interest at the rate of 24 per cent per annum in one lump sum. It was further averred by the plaintiffs that the defendants repaid on different dates Rs. 1,900/- towards the amount due to the plaintiffs and the plaintiffs waived their right to enforce the default clause mentioned in the "khata" and accepted 19 instalments of Rs 100/- each paid by the defendants up to Baisakh Sud 6, Samwat year 2017. Since the defendants committed default in payment of remaining 11 instalments and they did not pay the amount due to the plaintiffs despite notice, the plaintiff brought the suit for Rs. 1,584/-as stated above. THE defendant Ram Bilas did not put in his appearance and ex parte proceedings were taken against him. THE suit was contested by defendant Mangee who denied having executed "khata" Ex. 1 in favour of the plaintiffs. He also denied receipt of consideration. He also denied that the plaintiffs waived the default clause arising under "khata" Ex. 1. According to him, the suit was barred by time. On the pleadings of the parties, the following issues were framed, - (1) Whether the defendants on 18-10-58 took a loan of Rs. 3,000/- in cash and executed "rukka" in favour of the plaintiffs ? (2) Whether the plaintiffs got signatures on "rukka" of defendant No. 1 by telling him that defendant No. 2 has taken a loan and he should sign it as an attesting witness and as such defendant No. 1 is not liable ? (3) Whether non-payment of instalment of Magh Samwat 2015 gave rise to cause of action on the same day to the plaintiffs to realise the amount in lump sum, and, thus, the suit is time barred ? (4) Relief? THE trial court held that the "khata" Ex. 1 was executed for consideration by both the defendants in favour of the plaintiffs. It accordingly decided issues Nos. 1 and 2 in favour of the plaintiffs. As regards issue No 3, it found that since the instalments which became due in the months of Magh Sud 6 and Falgun Sud 6, Samwat 2015, were not paid on due dates, the whole amount became payable on Magh Sud 7, Samwat 2015, corresponding to February 13, 1959 It was further held that since the suit was brought on March 28, 1962 after the expiry of three years from February 13, 1959, it was barred by time. On appeal by the plaintiffs, the lower appellate court affirmed the findings recorded by the trial court on issues Nos. 1 and 2. THE findings of these issues have not been challenged before me.

(3.) LEAVE to appeal to a division Bench prayed for by the learned counsel for the respondents is refused.