N P R V A R SUBRAMANIAM CHETTIAR Vs. ARARSSOMASUNDARAM CHETTIAR EXECUTOR OF APRARUNACHALAM CHETTIAR S ESTATE BY MAYANDI CHETTIAR,AGENT

JUDGEMENT

(1.) ON the authority of Kriyappa v. Rachapa 24 B. 493 : 2 bom. L.R. 378 Mylan v. Annavi Madan 29 M. 234 : 16 M.L.J. 99 and Original Side Appeal No. 20 of 1905 (unreported), we think that the transaction in this case evidenced by the accounts both of plaintiff and defendants, whereby the interest due up to October 25th was calculated and added to the principal, thus wiping out the debt on account of interest, was a payment which saved limitation under Section 20 of the Limitation Act. An objection has been taken that the defendants were prejudiced by the frame of the plaint, which did not give the defendants notice that the plaintiff intended to rely on this payment to save limitation.

(2.) AN issue was framed on the question of limitation, and the parties having gone to trial on the subject, we cannot allow the appellants to raise this plea in the arguments in second appeal, especially when it has not been stated as a ground of second appeal. As regards the arguments (1) that the 5th defendant had no authority to make payments on behalf of defendants Nos. 1 to 4 and make them liable by his acts and (2) that interest at Nadappu rates should not have been allowed, the Subordinate Judge has recorded findings in plaintiff s favour on these two points and as those findings are findings of fact and there is some evidence to support them, we cannot interfere. The second appeal is dismissed with costs.