PITAMBER MOHAPATRA Vs. LAKSHMIDHAR MOHAPATRA

JUDGEMENT

(1.) This arises out of a petition by the defendant in a suit for recovery of loan due upon a handnote, executed by defendant 1, for a sum of Rs. 75 including the interest due thereon. The original creditor was one Baishnab Charan Mohapatra since dead. His son and father left behind are respectively defendants 3 and 4 (pro forma). Defendant 2 is the nephew of defendant 1 and is sought to be made liable, the debt being a family debt. The plaintiff comes to sue by virtue of an assignment of certain debts that belonged to Baishnab Charan including the present one effected by a deed of assignment executed on behalf of the legal heirs of Baishnab as well as the Karta of the then existing family, namely, defendant 4 (father of Baishnab). The defendants contest the suit on two grounds: (i) that the assignment does not bind the interest of Baishnab's widow who must have acquired an interest on the death of her husband in the property as she on her own account was not a party to the assignment; and (ii) that the debt is barred by limitation in as much as the payment of Rs. 25 relied upon to save limitation does not appear to have been made towards interest as such within the meaning of Section 20, Limitation Act, as it then stood. The substance of this contention is that the amended Section 20 which obliterates all distinctions between payment towards interest as such or payment towards principal, will not avail to the plaintiff inasmuch as by the time the amended section came into force in March 1942, the suit pronote had been barred by limitation.

(2.) The learned District Judge held it as a fact relying upon the pleadings between the parties that the aforesaid sum of Rs. 25 had been paid and appropriated towards interest. He says that the plaint contains an averment to this effect and the same was not denied in the written statement. In this view, he came to the conclusion that, even considered in the terms of Section 20, as it stood before the amending Act XVI

(16.) of 1942, the suit should be in time.