- (1.)The only point urged in this appeal is that the plaint claim is barred by Order 11, Rule 2 of the Code of Civil Procedure.
(2.)The facts relevant for the purpose of deciding the point in issue are as follows:-- One Sesha Poojary executed a will on 4-6-1956 bequeathing all his properties to some of his relations. He died on 1-9-1956. Under the will, the plaintiff-respondent is entitled to get an annuity of 40 muras of rice. Out of these 40 muras, 20 muras are payable at the end of January of every year. The remaining 20 muras are payable at the end of March, every year. On 25-3-1957 the plaintiff filed a Small Cause Suit No. 126-57 on the file of the learned Munsiff, Mangalore, claiming the portion of the annuity payable at the end of January 1957. That plaint was returned to the plaintiff as that Court held that the suit should have been instituted as an original suit. The plaint was re-presented to the proper Court on 11-6-1957. The claim made in that suit was ultimately settled out of Court. Thereafter, the plaintiff filed O. S. No. 268/57 on the file of the learned District Munsiff at Mangalore from which this appeal has arisen, claiming the portion of the annuity due at the end of March 1957. This claim is resisted on the ground that it is barred by Order 11, Rule 2, C. P. C.
(3.)The Courts below have rejected the contention of the defendants that the suit is barred by Order 11, Rule 2, C. P. C. on two grounds. Firstly they held that O. S. No. 136/57 is only a continuation of S. C. No. 126/57: secondly, they held that on the date O. S. No. 136/57 was instituted, cause of action had not arisen for claiming the annuity due in the year 1957 in view of Section 337 of the Indian Succession Act.