V.M. Deshpande, J. -
(1.) Being aggrieved by the judgment and decree passed on 25.04.2000 by the learned Additional District Judge, Amravati in Regular Civil Appeal No. 269/1993, allowing an appeal filed on behalf of respondent/defendant and setting aside the judgment and decree passed in Special Civil Suit No.90/1976 dated 24.09.1993 by the Joint Civil Judge Senior Division, Amravati decreeing the claim of the appellants herein for recovery of Rs.50,000/ together with future interest at the rate of 6% p.a. and dismissing the suit on the ground of limitation. The original plaintiff died and his legal representatives are before this Court in the present second appeal. Substantial Question of Law:
(2.) On 17.02.2004, while admitting the present second appeal, following substantial question of law was framed:
"Whether the suit filed by the plaintiff is within limitation or not? And whether suit transaction would be governed by the period of limitation prescribed under Article 23 or 113 of the Limitation Act?
(3.) For answering the aforesaid substantial question of law, it would be useful to narrate the undisputed facts as under:
(i) Originally, Ballabhdas Thakurdas Rathi filed a suit for recovery of an amount of Rs.50,000/ against Madanmohan Balmukund Kakani. The said suit was registered as Special Civil Suit No.90/1976.
(ii) During the pendency of the said suit, Ballabhdas died and therefore his legal representatives were brought on record as per the order dated 17.07.1992. They are the appellants.
(iii) On 22.10.1956, Balmukund, father of Madanmohan (defendant) deposited Rs.51,000/ with Ballabhdas and the said Ballabhdas executed a note i.e. "Deposit Receipt" (Chitti) in the name of Balmukund.
(iv) On 19.01.1957, Ballabhdas paid Rs.20,000/ towards principal and Rs.717.30/ by way of interest due and executed a fresh deposit receipt in favour of Balmukund for Rs.31,000/.
(v) In the month of February1957, Balmukund expired. Consequently, the said transaction was revised and on 10.12.1957, Ballabhdas executed fresh receipt of Rs.32,500/ in the joint name of Bhikulal and Madanmohan (defendant).
(vi) On 09.04.1958, Ballabhdas he paid Rs.33,000/ along with interest to Madanmohan (defendant) who represented that he was authorised to receive the payment for and on behalf of Bhikulal. Thus, it was Ballabhdas' case that by the said payment, he had factually discharged his liability, not only towards Madanmohan (defendant) but also towards Bhikulal in view of deposit note dated 10.12.1957, which was executed by him in favour of joint name.
(vii) It is also admitted fact on record that Bhikulal had filed Special Civil Suit No.82B/1959 in the Court of Civil Judge Senior Division, Nagpur against Ballabhdas and Madanmohan for recovery of his half share in the amount of Rs.33,000/ in respect of which Ballabhdas has executed deposit receipt on 10.12.1957.
(viii) The aforesaid suit of 1958 was dismissed by the learned trial Court. Bhikulal carried an appeal against the said judgment and decree before this Court by filing First Appeal No.59/1964. The Division Bench of this Court set aside the decree of dismissal and the claim of Bhikulal was granted for recovery of Rs.16,250/ along with future interest at the rate of 6% p.a.
(ix) According to Ballabhdas, Bhikulal filed execution proceeding for decree granted in his favour by this Court in the first appeal and towards satisfaction of the said decree, he paid Rs.43,975.16/. It is also the case of Ballabhdas that he was required to incur expenses of Rs.7429.15/ for defending the suit expenses and appeal filed by Bhikulal.
(x) As per Ballabhdas, Madanmohan (defendant) represented to him that he had an authority to receive half share of Bhikulal in the amount of deposit of Rs.33,000/ and since he had discharged his liability towards Bhikulal independently, amount which he had paid to Madanmohan (defendant), did not amount to valid discharge of his liability towards Bhikulal. He has every right to recover the amount which he has paid to Bhikulal and also litigation expenses. On these pleadings, Ballabhdas claimed a decree of Rs.50,000/ against Madanmohan towards the amount which he had paid to Bhikulal towards the satisfaction of the decree passed in First Appeal No.19/1964 and the expenses incurred for defendant litigation.
(xi) On being summoned, Madanmohan filed his written statement in Special Civil Suit No.90/1976. As per his standing, Ballabhdas had on 10.12.1957 executed a deposit note in the joint name of himself and Bhikulal but on 02.05.1958, Bhikulal paid him an amount of Rs.12,250/ including the interest before the maturity of the deposit of Rs.33,000/. The amount of Rs.21,000/ was due from Ballabhdas in pursuance of the deposit note dated 10.12.1957 but Ballabhdas credited the amount ante date in the name of mother; Gulabibai. In view of this transaction, he had acknowledged the receipt of Rs.33,000/ payable under deposit receipt dated 10.12.1957. It is also a defence and stand of Madanmohan in his written statement that claim of plaintiffBallabhdas for recovery of Rs.50,000/ was not within limitation.
He also claimed Rs.8,640/ from Ballabhdas after deducting the half share of Bhikulal in amount deposit of Rs.33,000/ and thus, claimed decree of Rs.8,640/.
(xii) The learned Judge of the trial Court on rival pleadings framed 17 issues. Issue No.17A was as under:
"Whether the suit is in limitation? Appellant no.4Navalkishor s/o Ballabhdas, the deceased plaintiff examined himself. Madanmohan examined himself and also examined one Sudhir.
(xiii) After appreciating the rival claims, the learned Judge of the trial Court, vide judgment and decree dated 24.09.1993 found that Madanmohan (defendant) in the suit filed by Bhikulal against him and Ballabhdas (i.e. Special Civil Suit No.82B/1959) had taken a stand that he had an authority to receive half share of Bhikulal payable under deposit note dated 10.12.1957 and in fact he has received half share of Bhikulal and as such now he is estopped from denying the said payment. In view of this fact, the learned trial Court recorded a finding that legal representatives of Ballabhdas i.e. plaintiff nos.1 to 7 are entitle to recover the amount which deceased Ballabhdas had paid to Bhikulal in execution of decree passed in First Appeal No.19/1964 along with the expenses incurred by him for defending the suit and appeal.
(xiv) As regards the limitation, the learned Judge of the trial Court held that for calculating the period of limitation, Article 23 of the Limitation Act is applicable and as such the suit is within limitation since the said Article provides the period of limitation of 3 years from the date on which the money is paid.
(xv) Being aggrieved by the judgment and decree dated 24.09.1993 by which the learned Judge of the trial Court ordered the plaintiffs to recover Rs.50,000/ from the defendants with interest at the rate of 6% p.a. from the date of the suit till its realization, the defendant preferred an appeal before the learned lower appellate Court and the said appeal was registered as Regular Civil Appeal No.269/1993. It is to be noted that the counter claim of Madanmohan was dismissed with costs. However, Madanmohan did not challenge the decree of dismissal of his counter claim.
(xvi) The learned Judge of the appellate Court formulated following points after having heard the parties to the appeal:
(i) Whether the claim of the plaintiff for recovery of Rs.50,000/ is within limitation?
(ii) What order?
After elaborate judgment, the learned Judge of the appellate Court recorded a finding that the suit filed by the plaintiffs was not within limitation and consequently, allowed the appeal by setting aside the impugned judgment and decree. Hence this second appeal.