RATHINA THEVAN Vs. PACKIRISAMI THEVAN

JUDGEMENT

(1.) The plaintiffs suit is on a promissory note executed by the defendant on 16 November 1921, at Kaulalampur, Federated Malay States, for 70 dollars- The defence is limitation. The District Munsif has decreed the suit and defendant prefers this civil revision petition. The petition came on before the learned Chief Justice who directed it to be posted before a Bench of two Judges as the question involved is of some importance.

(2.) The plaintiff and defendant are natives of Mannargudi taluk, Tanjore District. They went to the Federated Malay States to earn their livelihood; and while they were there, the defendant borrowed 70 dollars of the plaintiff and executed the promissory note sued on. The plaintiff instituted Civil Suit No. 166 of 1923 on the promissory note in Kaulalampur Magistrate's Court in the Native State of Selangor and obtained judgment on 15 March 1925. He filed O.S. 319 of 1924-in the District Munsif's Court at Mannargudi on the foreign judgment obtained by him, and the suit was dismissed as it was found that the Magistrate of Kaulalampur had no jurisdiction to entertain O.S. 166 of 1923 against the defendant. The plaintiff has now brought this suit on the promissory note alleging that he bona fide prosecuted O.S. 319 of 1924 in the District Munsif's Court against the defendant and that he is entitled to deduct; the time taken up in the disposal of the suit, under Section 14, Limitation Act. The District Munsif found that the defendant returned to British India a few days before 8 March 1923 and the plaintiff bona fide prosecuted the suit in the District Munsif's Court and is entitled to the benefit of Secs.13 and 14, Limitation Act.

(3.) It is clear that Section 14 cannot apply to this case as the cause of action in O.S. 319 of 1924 was different from the Cause of action in this suit. Here the plaintiff bases his suit on the promissory note executed on 16 November 1921. In the original suit he based his claim upon the foreign judgment obtained in the Magistrate's Court at Kaulalampur. Mr. Salla- Guruswami Chettiar, who appears for the respondent, contends that inasmuch as the suit in the Kaulalampur Court was based on the promissory note, and as the promissory note is the basis of action in this suit, the cause of action must be considered to be one and the same. This argument overlooks the fact that the promissory note was merged in the decree passed by the Kaulalampur Court; and the basis of action in O.S. 319 of 1924 was not the promissory note but the decree obtained on the promissory note. It cannot be said that the decree is the same as the promissory note. The defence to the action on the promissory note is not the same as the defence to the action on the foreign judgment. We have no hesitation in holding that the cause of action in this suit is different from the cause of action in O.S. 319 of 1924 and therefore Section 14, Limitation Act, cannot be invoked by the plaintiff to save limitation.