Decided on July 25,1955

Todarmal Tejmal And Anr. Appellant
Chironjilal, Gopilal And Anr. Respondents


Dixit, J. - (1.) THIS is an appeal by the Plaintiffs from a decision of the Civil Judge First. Class Shivpuri, dismissing the Plaintiff's suit for the recovery of Rs. 5225/8/ - due on the basis of adjustment of accounts signed by the Defendants. The suit was dismissed on the ground that there had been a novation of the contract sued upon and that the suit, was, therefore, not maintainable.
(2.) THE Plaintiffs case was that after adjusting the accounts of mutual dealings between the parties, the Defendants signed the Plaintiff's' ledger on 20 -10 -1933 acknowledging a sum of Rs. 5697/8/ - as due from them; that thereafter the Defendants paid Rs. 36/11/9 on 9th February 1934 and Rs. 250/ - on 6th March 1934; that by documents dated 15 -3 -1934, 18 -3 -1934, 27 -3 -1934 and 2 -4 -1934 the Defendants undertook to repay the Plaintiff's amount by the sale of certain properties specified in the document dated 15 -3 -1934; that on 9 -4 -1934 the Defendants credited to their account Rs. 1208/7/ being the proceeds of some property and that there after the Defendants did not pay any amount to the Plaintiffs and hence the suit. The Plaintiffs claiming that on the, date of the suit the amount due to them came to Rs. 7181/8/ -limited their claim to Rs. 5225/8/ - only. The Defendants admitted that they signed the Plaintiffs' account books and acknowledged a sum of Rs. 5697/8/ - as due. They contested the suit pleading that the accounts were not explained to them when their signatures were obtained on the Plaintiffs' account books; that no suit could be based merely on tin acknowledgment of die debt; and that even if the acknowledgment could form the basis of a suit, the Plaintiff's suit did riot lie as their liability for the debt in respect of which die acknowledgment was given had been superseded by a subsequent agreement. According to them there was an agreement Ex. D.1 of 15 -3 -1934 by which it was settled that die present Plaintiffs and other creditors of the Defendants would in satisfaction of their debts accept and sell the movable and immovable properties mentioned in Ex. D. 1 and distribute amongst themselves pro rata the proceeds of the sale, and die debts including the Plaintiffs' debt were discharged: that in pursuance of tins agreement the Plaintiffs took possession of the property and obtained from the Defendants the title deeds of the immovable properties; that a part of this property was sold and the Plaintiffs received Rs. 1208/7/ - in rate able distribution out of the proceeds of sale of same Katha; and that on 2 -4 -1934 there was yet Anr. agreement to the same effect extinguishing the Defendants' liability under the acknowledgment.
(3.) THE Court below rejected the plea of the Defendants that the accounts were not explained to them and that no suit could be based merely on an acknowledgment of debt. Their plea that subsequent to the acknowledgment, there was a, complete contract extinguishing the old contract and bringing into existence a new one was, however, accepted by the learned Civil Judge with the result that the Plaintiffs' suit based on the acknowledgment was dismissed.;

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