CHHAJJU Vs. KHYALI RAM

JUDGEMENT

(1.) The suit out of which this appeal arose was for sale upon a mortgage. Kure Mal and Chhajju executed a simple mortgage in favour of the plaintiff Khyali Ram on the 23rd of December 1890. On the 7th of August 1907, a suit on the said bond was instituted which was withdrawn on the 14th of the same month. The substance of the application was as follows:"There is such a patent defect (naqs sarih) in the case as renders its dismissal likely, it is, therefore, prayed that the case may be dismissed with permission to being a fresh suit." The order on the application is in these terms:"This is an application under Section 373, Civil Procedure Code. I allow the application. The plaintiff should be at liberty to bring a fresh suit for the subject-matter of the claim".

(2.) The fresh suit was brought on the 30th of June 1910 with the allegation that in 1907 a suit on the same bond was withdrawn on the ground of limitation with permission to bring a fresh suit. Chhajju Mal denied the allegation and pleaded that the permission to bring a fresh suit being granted for insufficient reasons and without notice to the defendant was bad in law; that the fresh suit was barred by res judicata and that it was barred by Section 31(2) of the Indian Limitation Act, 1908, and that the defendant was a minor when the bond was executed. The Court of first instance overruled other pleas already mentioned but, finding Chhajju to be minor on the date of the execution of the bond, gave a decree against Kure Mal and dismissed the claim against Chhajju.

(3.) The plaintiff appealed challenging the findingas to the minority of Chhajju and Chhajju filed objections to the effect that the suit not being instituted within six months from the 14th of September 1907 was time-barred. The lower Appellate Court, finding that Chhajju was of age on the 23rd of December 1890, decreed the plaintiffs claim against Chhajju but took no notice of the plea of limitation put forward by him.