GOVINDA CHANDRA CHAKRAVARTI Vs. NIROD KUMAR BANERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for accounts. There was a preliminary decree for accounts passed on the 2nd May 1913. A Commissioner was appointed and a final decree for accounts was made on the 31st March 1914. That decree was affirmed on appeal and a second appeal has been preferred by the defendant.

(2.) The first question that arises is whether the Court of Appeal below was wrong in overruling the plea of limitation taken before it on the ground that no appeal had been preferred against the preliminary decree. We think that the learned Subordinate Judge was right in the view he took of the matter.

(3.) It is contended before us that under Section 3 of the Limitation Act the suit must be dismissed even though limitation was not set up as a defence. But the defendant is precluded under Section 97 Civil Procedure Code, from disputing the correctness of the preliminary decree, assuming that the Munsif was wrong upon the question of limitation. The learned Subordinate Judge moreover points out that this objection of limitation was not taken in the written statement--no issue was directed upon it and the question was a mixed question of law and fact. However that may be, the defendant was precluded from raising the question of limitation, as he did not appeal against the preliminary decree.