REOTI RAM Vs. LALLU MAL

JUDGEMENT

(1.) THIS is a civil revision from a decree of the court of Small Causes. The suit was based on a promissory-note executed by the defendant on the 16 of April, 1919. The suit was filed on the 28 of April, 1922. The defendant put in a written statement, the second paragraph of which runs as follows: "The. plaintiff (who is a Jotshi) led the defendant to believe that he would perform adequate puja which would have the effect of saving the lives of his children and they would survive the age of one year, and for this, the defendant agreed to. pay Rs. 80 to the plaintiff, out of which Rs. 8 was paid in cash and the balance was payable after the child had survived the age of one year. It was on this understanding that the promissory note was written. The child died within a year of its birth and hence nothing was payable." The other ground taken was that the suit was barred by limitation. It appears from the record that five witnesses on behalf of the defendant were present but, as a matter of fact, the court did not take their evidence, holding that it was not open to the defendant who admitted the execution of the promissory note to plead want of consideration, and reliance was placed on Sri Ram V/s. Sobha Ram Gopal Rai (1922) I.L.R. 44 All. 521. I do not think that ruling is applicable in this case. I think under the 3 proviso to Section 92 of the Indian Evidence Act the court should have allowed evidence to be taken on this point. But it is unnecessary to decide this, as I hold against the plaintiff on the second point. On the face of it the suit is barred by limitation as it was not filed until the 28 of April, 1922. In order to bring it within limitation, it was pointed out that in some other suit (not between these parties) this promissory note had been exhibited and on that occasion, some time in 1920, the defendant had admitted its execution. The court has held that the mere fact that on the back of the note there is in the handwriting of the defendant the words "execution admitted," and the endorsement of the Munsif showing the date, is a sufficient compliance of the provisions of Section 19 of the Indian Limitation Act. It seems to me that the in ere fact that in some other case the defendant merely admitted the execution of the document is not an acknowledgment of liability within the meaning of the section. No evidence was taken and there is nothing but the endorsement. In my opinion it has not been shown that the suit was within limitation; it, therefore, should have been dismissed. I accordingly allow this application and set aside the decree of the court below with costs.