SUBBIAH AMBALAM SERVAI Vs. UNNAMALAI ACHI

JUDGEMENT

(1.) The petitioner in this case sued in the Court of the District Munsif of Devakottai to recover a sum of Rs. 150 which was entrusted by him at Penang on the 24 November, 1934 with one Mariappan, the agent of Ramaswami Chettiar, for the purpose of remitting that money to British India. The suit was filed on the 24 November, 1937 on the last day permitted by limitation on the assumption that the limitation began to run from the date of the entrustment. Ramaswami Chettiar was then dead and his widow was impleaded as defendant and a decree was sought for against the assets of Ramaswami Chettiar in her hands. While the suit was pending, it was brought to the notice of the plaintiff that Ramaswami Chettiar had left a will executed on the 17 of September, 1936 in which two persons were appointed as executors of his estate. Thereupon an application was made by the plaintiff to implead these executors as defendants 2 and 3 and on the 6 July, 1938 they Were duly impleaded.

(2.) The only point which requires decision in this petition is whether the claim of the plaintiff is barred by limitation as against defendants 2 and 3. The learned District Munsif has held that the suit is barred by limitation and in so holding he relies upon the language of Section 22 of the Limitation Act which runs as follows: Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(3.) The question, therefore, for me to decide is whether Section 22 has been rightly applied by the learned District Munsif to the facts of this case. Clearly if the second and third defendants are new defendants within the meaning of Section 22, the suit was barred on the date when they were ordered to be impleaded. But it is argued for the petitioner that they are not really new defendants, but merely new representatives of the same estate which was already represented by the impleading of the first defendant at the time when there was no bar of limitation. It seems to me that this argument must prevail. It is quite clear that the plaintiff in the present suit was not suing either the first defendant or the second and third defendants in their personal capacity. Although it is true that the estate of a deceased person must, be represented in any suit by some living person, the real defendant in. this suit may rightly be said to be the estate of Ramaswami Chettiar. It was Ramaswami Chettiar? who was plaintiff's debtor and plaintiff seeks to recover the amount of the debt from whosoever may represent Ramaswami Chettiar's estate. It seems to me reasonable therefore, on general principles to argue that as the first defendant and defendants 2 and 3 were all impleaded as representing Ramaswami Chettiar's estate, there is in essence the same defendant throughout.