MARUDAI MUTHIRIAN Vs. CHINNAKANNU MUTHIRIAN

JUDGEMENT

(1.) I am unable to agree with the learned Small Cause Court Judge on the question of limitation. The facts are not in dispute. The plaintiff and the defendant had jointly executed a deed of mortgage to one Appaniengar. The amount secured by the mortgage was Rs. 300, which came to nearly Rs. 533 with interest thereon. The plaintiff paid admittedly Rs. 303 and the defendant only Rs. 227. This is a suit to recover from the defendant contribution for the amount which the plaintiff had paid in excess of the amount due from him. There were various pleas in the lower Court and I need not refer to all of them now. The only point is whether this suit was within time as one for contribution. The last payment by the plaintiff was made in January 1914 and the suit was instituted on the 2nd July 1917. Prima facie, it was more than three years since the accrual of the cause of action. The learned Judge in the Court below was of opinion that as the defendant made payment under the bond in September 1914, the bar of limitation was saved. He is clearly wrong in this view. It is not the payment of the defendant that matters, but it is the payment by the plaintiff that gives him the right to sue, as the plaintiff s claim is in respect of the excess payment made by him. To such a suit, Article 61 of the Limitation Act is clearly applicable and under that Article the suit must be brought within three years of the date of payment. If any authority were needed for this view, I may refer to the order of reference made by Bhashyam Ayyangar, J., in Rajah of Vizianagrum v. Rajah Setrucherla Somasekhararaz 28 M. 686. The learned Vakil for the petitioner did not support the judgment of the lower Court on this point. What he contended was that the claim against the defendant was saved by the acknowledgment under Exhibit IV. It was a registered notice sent on the 26th July 1914, before the defendant had made the last payment. At that time, defendant heard that the plaintiff was about to get the mortgage bond assigned to himself and he sent this notice saying that, if you get an assignment, out of the sum of Rs. 100 that may be still due my liability will be only Rs. 50." This is not an acknowledgment of the liability to the plaintiff. It is only an acknowledgment of the liability under the bond. Apart from this there is another fatal objection to regarding Exhibit IV as an acknowledgment, because under Order VII, rule 6, it is incumbent upon the plaintiff who brings the suit after the prescribed period of limitation to state explicitly the ground on which the bar is saved. He has not stated that. There is no issue about it and there is no evidence connecting Exhibit IV with the liability which the defendant was under to the plaintiff. For all these reasons, Exhibit IV cannot be regarded as saving limitation. As I already mentioned, the suit was brought more than three years after the last payment made by the plaintiff and as such it is barred by limitation. The decree of the Subordinate Judge must be reversed and the suit dismissed with costs throughout.