N P KRISHNA AYYAR Vs. SUDALAIMUTHU PILLAI

JUDGEMENT

(1.) The question in this appeal is one of limitation. The appeal has been fied against the judgment of Chandrasekhara Aiyar, J., in a second appeal confirming the dismissal of a suit filed by the appellant in the Court of the District Munsiff of Srivaikuntam. We consider that the appeal is well founded.

(2.) In the year 1935, the first defendant instituted in the Court of the District Munsiff of Tinnevelly, Small Cause Suit No. 2391 of 1935, against one Paramuthu Kudumban for the recovery of Rs. 99 alleged to be due by way of rent. The first defendant applied for the attachment before judgment of two brick kilns which he alleged belonged to Paramuthu Kudumban. The application was granted and the attachment effected. As it was not possible to remove the kilns, the amin left them in the custody of the first and second defendants on their entering into a security bond for the sum of Rs. 1,500. The bond was executed on the 19th December, 1935. On the 17 January, 1936, the plaintiff filed a petition under Order 21, Rule 58 of the Civil P. C. objecting to the attachment on the ground that the kilns belonged to him. On the 25 January, 1936, the plaintiff filed an interlocutory application (No. 56 of 1936) asking the Court to direct delivery of the kilns to him. He had deposited in Court the amount of the first defendant's claim. The District Munsiff heard the application on the same day. He passed an order cancelling the attacllpient and directing the first and second defendants to deliver the kilns to the plaintiff. The delivery was effected on the 26 January, 1936. The plaintiff then discovered that all the bricks had been removed from one kiln and a quarter of the bricks from the other kiln. On the 5 February, 1936, the District Munsiff passed an order closing I.A. No. 56 of 1936. On the 4 March, 1936, he dismissed the first defendant's suit and allowed the plaintiff's petition under Order 21, Rule 58. On the 16th March, 1936, the plaintiff filed E.P. No. 370 of 1936 to enforce the security bond to the extent of Rs. 1,458 the value which he placed on the bricks which had been removed from the kilns. This application was dismissed on the ground that the plaintiff's remedy was by suit and not in execution proceedings. Thereupon he applied to this Court for revision (C.R.P. No. 1209 of 1936). On the 25 January, 1939, while the Civil Revision Petition was pending, the plaintiff filed the present suit. On the 24 October, 1939, this Court heard the application for revision. The defendants conceded that the plaintiff had a remedy by way of suit and contended that the question of their liability should be decided in the suit and not in the execution proceedings. The Court accepted the contention and left the rights of the parties to be decided in the present suit.

(3.) The suit was originally filed in the Court of the District Munsiff of Tinnevelly, but was transferred to the Court of the District Munsiff of Srivai kuntam, who delivered judgment on the 12 December, 1940. The District Munsiff held that the suit was maintainable and that the plaintiff had suffered loss to the extent of Rs. 703-10-0 but he considered that the plaintiff's remedy was barred by the law of limitation. In his opinion the suit fell within Art. 29 of the Limitation Act. The plaintiff appealed to the Subordinate Judge of Tinnevelly, who agreed with the District Munsiff that the suit was barred by the law of limitation. He also held that the suit was not maintainable. It was not open to the defendants to question the maintainability pf the suit as in the revision proceedings they had conceded that the plaintiff's remedy was by way of suit.