Decided on September 06,1974



- (1.) An interesting question of limitation has been debated in this appeal preferred by defendants 2 and 4 to 10 against the decree in O. S. No. No. 141 of 1965, Sub-Court, Palghat. The suit as originally framed, was one for recovery of the amount due under a hypothecation bond, Ext. B-39 dated 11 11 1964 executed by the 1st defendant in respect of the assets of his deceased brother, Vellappa Rowther, who died on 26-6-1962. The 1st defendant purported to execute the hypothecation bond by virtue of authority stated to be derived by him under certain trust deeds, Exts.A-1 dated 9-4-1963 and A-13 dated 21-5-1962. The amount due under the hypothecation bond together with interest claimed in the suit amounted to Rs. 62,749.00. The 2nd defendant in the suit was the widow of the deceased Vellappa Rowther; defendants 3 and 5 to 8 were his daughters, and the 4th defendant, was his only son. The 3rd defendant is now dead, and is represented by his legal representatives defendants 9 and 10. The 3rd defendant had instituted a suit for partition of the assets of Vellappa Rowther O.S. 41 of 1965 impugning the trust deeds Exts. A-1 and A-13. The same was tried along with the suit out of which this appeal arises, namely, O. S.141 of 1965. There were two other suits O.S. 84 of 1965 and O.S. 127 of 1965. It is enough to state that they were also suits for recovery of certain monies. All the four suits were disposed of by the Trial Court by a common judgment, in the first instance in April 1967. That court upheld the contention of the 3rd defendant in the partition suit that the trust deeds were neither genuine nor valid. In O.S. 141 of 1965, it was found that the consideration for Ext. B-39 was made up of two promissory notes, Exts. B-14 dated 23-11 1960 for Rs. 25,000.00, and B-15 dated 5 1 1961 for Rs. 50,000.00, and certain additional sums borrowed. It was held that the amounts due under Exts. B-14 and B-15 had become barred by limitation when the suit was instituted on 31 7 1965 and that to the extent to which the consideration for Ext. B-39 was constituted of these, the same could not be enforced. Therefore, the Trial Court granted a decree for only the additional amounts which went to make up the consideration for Ext. B-39, other than what was covered by the two promissory notes (about Rs. 5,384/-). It also held that the endorsements of payments on the promissory notes were insufficient to save limitation. Against the common judgment, the plaintiff in O.S. No 141 of 1965 preferred A.S. No. 375 of 1967 to this Court; the 7th defendant in the suit for partition (O.S. No. 41 of 1965) filed A.S. 377 of 1967; and against the decision in OS. 127 of 1965 the plaintiff in O.S. No. 141 of 1965 and his brother filed A S. No. 366 of 1967. All the three appeals were disposed of together by a common judgment of this Court dated 11 9 1972. This Court affirmed the finding of the Trial Court that Exts.A-1 and A-13 were neither genuine nor valid. It is enough to notice that regarding O.S. 141 of 1965 this Court allowed the plaintiff's application to amend the plaint, so as to base the suit on the promissory notes. This Court expressed itself thus: "Before this Court, a petition for amendment of the plaint has, however, been moved on behalf of Rajakrishna Menon Plaintiff in O.S. 141 for leave to amend the plaint in such a way as to allow him to pursue the claim on the original consideration. The prayer for amendment was, of course, opposed by the third defendant in O.S. 141 (plaintiff in O.S. 41) and also by the 1st defendant trustee. On hearing the arguments on both sides, we are satisfied that for determining the real question in controversy, and for advancing the interests of justice the amendment should be allowed. The lower court has considered the question from the standpoint of the promissory notes only, in dealing with that part of the consideration in Ext. B-39, and viewed in that light the finding of the court is correct. But now the party seeks permission to place his case on the original consideration and relies on acknowledgements contained in documents like Exts. A-1, B-6, B-7, B-38, B-39, B-49 B-50 and B-51. We see force in this submission. By means of the amendment no new or inconsistent cause of action is introduced. So we allow the amendment under O.6 R.17. Civil Procedure Code, and remand the case to the court below for fresh trial of the concerned issues in the light of the amendment". It concluded as follows: "In the result, A.S. Nos. 377 and 376 of 1967 are dismissed. In A.S. 376 of 1967, the decree of the court below allowing recovery of Rs. 5, 384/- with interest and proportionate costs, is confirmed; but the dismissal of the suit disallowing part of the plaint claim covered by the two promissory notes Exts. B-14and B-15 is set aside and the suit is reopened to that extent, and the issues arising from the amended plaint will be tried and decided by the court below afresh. Both parties will be at liberty to adduce evidence in support of their claims as recast by the amended plaint. In all the three appeals the parties will bear their respective costs in this Court".
(2.) In pursuance of the above order of remand, the court below by its judgment under appeal, granted a decree for Rs. 56,769.80, with interest thereon, at 6 1/2% from 11 11 1964 till 31 7 1965 and thereafter 6% per annum till payment, with proportionate costs against the estate, of Vellappa Rowther in the hands of defendants 2 to 10; and a personal decree for Rs. 3,230 30 with interest thereon at the same rates for the same periods with proportionate costs against the 1st defendant. It is against this decree that the above appeal has been preferred, by defendants 2 and 4 to 10 in O.S. No. 141 of 1965 (which is the only suit with which we are now concerned). The 1st defendant has preferred a memorandum of cross objections objecting to the personal decree against him for costs.
(3.) We may straightway say that the memorandum of cross objections preferred by the 1st defendant (2nd respondent) against the plaintiff, (1st respondent), in respect of a matter in which the appellant is not interested, is not maintainable and has only to be dismissed. We do so with costs.;

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