DEVARAJULU NAIDU (DIED) Vs. JAYALAKSHMI AMMAL

JUDGEMENT

(1.) This appeal arises out of a suit filed by the appellants in the City Civil Court to recover a sum of Rs. 2,200 from the first and second respondents. A decree was passed for Rs. 187-12-0 only, the balance of the claim being dismissed on the ground that the suit to that extent was barred by the law of limitation. The question is whether Art. 62 or Art. 120 of the Limitation Act applies to the case.

(2.) On the 9 January, 1931, the appellants, who are brothers, sold certain immovable properties to one Krishnaswami Naidu for Rs. 3,000 and in part discharge of the purchase consideration Krishnaswami Naidu executed a promissory note for Rs. 1,560 in favour of the first respondent, who is the wife of the first appellant. The husband and the wife quarrelled and she eventually left him. On the 5 November, 1931, the first respondent fraudulently endorsed the promissory note to Dorai-swami Naidu, the father of the second respondent, who was said to have been a friend of the family. Doraiswami Naidu sympathised with the wife in her quarrel with the husband, and it has been established that the promissory note was endorsed to him without consideration and with the object of defeating the husband and his brother. In 1932 Doraiswami Naidu filed a suit against Krishnaswami Naidu in the City Civil Court to recover the amount due on the promissory note and on the 19 July, 1933, he obtained a decree for Rs. 1,653-8-0. As the result of an appeal to this Court the decree was set aside and the case remanded to the City Civil Court for the taking of evidence. The judgment of this Court remanding the case was delivered on the 9 August, 1934. As the result of the further hearing a new decree for Rs. 1,653-8-0 was passed on the 26 November, 1934.

(3.) The present suit was filed by the appellants on the 26 November, 1937, to recover from the first respondent and Doraiswami Naidu with interest the Rs. 1,653-8-0 which Doraiswami Naidu had recovered from Krishnaswami Naidu. The decision that the appellants were only entitled to Rs. 187-12-0 was based on a finding that the rest of the money had been paid to Doraiswami Naidu before the 26 November, 1934. The principal Judge of the City Civil Court who tried the case, was of the opinion that this was a suit for money had and received and accordingly held that Art. 62 applied.