- (1.) R. B. Mehrotra, J. Heard learned Counsel for the appellants Sri D. N. Mishra and for the respondent Sri Santosh Kumar.
(2.) PLAINTIFF-respondent Kalyan Chand filed Suit No 591 of 1977 in the Court of the Munsif, Allahabad. On the basis of the pleadings of the parties, following issues were framed: (1) Whether the plaintiff had advanced loan to the defendants as alleged and executed the pronote acknowledging the receipt of loan as alleged in the plaint? (2) Whether the suit is barred by limitation? (3) Whether the suit is barred by Order VI, Rule 15 of the Code of Civil Procedure as alleged in paragraph 13 of the written statement? (4) Whether the suit is barred by Section 18 of the U. P. Act No. 29 of 1976? (5) Whether any cause of action arose of filing the suit? (6) Whether the rate of interest claimed is excessive and is not in accordance with law? (7) Whether the plaintiff is entitled to special cost under Section 35-A of the Code of Civil Procedure? (8) To what relief, if any, the plaintiff is entitled? The trial court decided issue No. 3 in favour of the plaintiff. While deciding issue No. 1 the trial court held that the plaintiff has failed to prove that the pronote was executed by the defendants and the defendants had signed the pronote on its back. Issue No. T was decided against the plaintiff. While deciding the same issue, the trial court also held that since on the back of the pronote, only Bhola Nath Singh signed, the acknowledgment of loan made by Bhola Nath Singh alone cannot be binding on the other defendant, namely, Mahangoo Lal. The trial court also recorded a finding that the plaintiff has failed to prove that the loan was jointly taken by both the defen dant. The trial court while deciding Issues No. 2, 4, 5 and 6 held that since Issue No. 1 has been decided against the plaintiff, no cause of action arose for the plaintiff to file the suit. The trial court itself did not decide Issue No. 2 and neither decided Issue No. 4 as to whether the suit is barred by Section 18 of the U. P. Act No. 29 of 1976. Aggrieved by the aforesaid judgment and decree of the trial court, the plaintiff respondent filed an appeal. The lower appellate court, by its judgment, dated 23-8-1979, allowed the appeal and held that the plaintiff has fully proved the execution of the pronote and thereby arrived at a finding that the alleged loan was given by the plaintiff to the defendants and the plaintiff proved paying of the loan and execution of the pronote. However, while deciding Issue No. 2, the lower appellate court also recorded a finding that the loan was alleged to have been given by the plaintiff in the year 1971. The suit was filed in the year 1971, The defen dant Bhola Nath Singh had made an endorsement in his hand-writing 90 1- 12-1974 that Rs. 50 are deposited towards interest. On the basis of the aforesaid endorsement, the lower appellate court recorded a finding that since the loan was acknowledged on 1-12-1974, the limitation for filing the suit will be computed from the said date, as such the suit was not barred and on the basis of the aforesaid endorsement, the lower appellate court also recorded a finding that since the loan was jointly taken by Bhola Nath Singh and Mahangoo Lal both, it was their joint liability and acknowledgment of loan by one of the defendants was sufficient for extending the period of limitation as the acknowledgment has to be construed on behalf of both the defendants.
(3.) THE present appeal was admitted by this court on 15-2-1990 and following substantial question of law was found to be involved in the present appeal: "whether acknowledgment made by Bhola Nath, appellant saved the limitation for filing the suit as against Mahangoo Lal, appellant as well?" The learned counsel for the appellants has challenged the finding of the lower appellate court on the point of construing the alleged acknowledg ment by Bhola Nath as acknowledgement on behalf of both the appellants, He has further contended that in any case, the lower appellate court fell in apparent error in decreeing the suit without deciding Issue No. 4, namely, whether the suit is barred by Section 18 of the U. P. Act No. 29 of 1976.;