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Judgment
Koshi, C.J.—This is a Plaintiff''s appeal. The suit giving rise to it was to enforce a hypothecation bond Defendant executed on her own behalf and on behalf of her minor children, Defendants 1 to 3, in favour of the Plaintiff, Defendant 5 and their mother Defendant 6.
The Plaintiff and'' Defendant 5 were also minors on the date of the hypothacation bond. The said bond is Ex. A in the ease, it bears the date 6-12-1099. and is in the sum of Rs. 2,000. Interest at 9 % per annum is provided for in the document and the amount was payable only six years since.
On 22-6-1910 the Plaintiff instituted a suit in forma pauperis for partition of his family properties. The right under this bond was included as a partible asset and the prayer with respect to it was that there should be a decree for recovery of the amounts due thereunder and that those amounts should also be divided among die sharers. Likewise a claim under another hypothecation bond was also included in the suit and similar prayers were made regarding the amounts due under that bond as well. The paupet application was in due course registered as a suit in O.S. 70 of 1116. Defendants 1 to 3 here were not impleaded in that suit, but Defendant 4 was-Defendant 9 there.
On 13-12-1118 the Plaintiff moved the Court that as besides partition, recovery of the amounts per two hypothecation bonds were also included in die suit, the suit was open to the objection of multifariousness, and that the claims for the amounts due as per two bonds may be registered as two separate suits (vide Ex. I). The Court allowed the prayei and directed that O.S. 70 of 1116 will be treated a partition suit pure and simple and that the claims in respect of die two bonds would be registered as two separate suits (vide Ex. C).
The Plaintiff was directed to file separate plaint in respect of the bonds and the present suit of O.S. No 39 of 1119 arose from the plaint filed pursuant to", the Court''s order. The new plaint was filed in Court on 26-3-1119. In diis plaint Defendants 1 to 3 were also made parties.. That was certainly going beyond die direction the Court gave in the matter. An important question arising for decision in the appeal is whether the plaint should be held to have been laid on 26-3-1119, when the so-called amended plaint was produced in Court.
After the plaint in O.S. No. 39 of 1119 was filed the case had a chequered history, but we are not concerned with much of. it for the purpose of this appeal. First there was an ex parte decree in terms of the plaint against all the four Defendants. Then defendants 2 got the decree re-opened but through his default the suit happened to be decreed again. Afterwards the 3rd Defendant came on the scene and he got the ex parte decree as against him \\ set aside and the suit restored to the file".
It is difficult to understand what the trader reopening the ex parte decree as against Defendant alone and restoring die suit to die file without any qualification meant. Anyhow thereafter trial,, proceeded as if there was no subsisting decree 1 against any one of the Defendants. Against that ''approach the Plaintiff did not demur before the lower Court nor has he taken exception to it in ''the memorandum of appeal to this Court.
The lower Court held that as against Defendants 1 to 3 the suit must be treated as having been instituted only on 26-3-1119 when die claim had got barred and that as Defendant 4 was a party (Defendant 9) to O.S. No. 70 die suit as against her should be deemed to have been filed well within time, on die date of die pauper application (22-11-1110). The suit was therefore dismissed as against Defendants 1 to 3 and a decree given against Defendant 4 for a part of the consideration money, interest thereon and costs.
The hypothesis was completely exonerated. Defendant 3 had contended that the consideration for Ext. A was not binding on Defendants 1 to 3, but the Court held that to the extent of ''Rs. 1,075 1/2 the debt was binding on Defendants 1 to 3 also. It is for this
At the fag-end of the Appellant''s argument before us it was contended that as against Defendants 1, 2, and 4 there was a subsisting decree in terms of the plaint in the suit and die decree now appealed against should be treated as one dismissing the suit against Defendant 3 alone. We have said that no such contention was raised before the lower Court for a ground to .the effect that the lower Court went wrong in dismissing the suit as against Defendants 1, 2 and 4 because of the existence of a prior decree against them taken in the memorandum of appeal.
On the other hand complaint is raised in the appeal memorandum on the merits of die case, against the dismissal of die suit as against Defendants 1 to 3 and for not granting a decree against Defendant 4 and her interest in the property for the full claim. We also said that the language of the order re-opening the suit is dubious. We cannot therefore countenance die present contention that the Court went wrong in dismissing the suit as against Defendants 1 and 2 in its entirety and partially as against Defendant 4 because of the existence of a prior decree in the self-same suit. The lower Court''s judgment and the memorandum of appeal treat Defendants 1 to 3 alike so far as the dismissal of the suit is concerned. We can therefore deal with the appeal only on the basis that the decree before us in appeal is the only subsisting decree in the suit.
The points that arise for consideration therefore are whether (i) the lower Court''s view that the suit was barred as against Defendants 1. to 3 is correct and (ii) whether there should have been a decree against Defendant 4 for the full claim. If the plaint presented to the Court on 20-3-1,119 was one conforming to the Court''s direction and as contemplated by the provision in Order 2, Rule 6, Code of Civil Procedure, that plaint should be deemed to have been instituted on the date of the presentation of the pauper application. In this case, however the Plaintiff added to the newly presented plaint persons who were not parties to the original plaint. In truth and substance it is therefore a new suit that was instituted against Defendants 1 to 3.
Whether as against Defendant 4 it was a new .plaint or not does not call for decision as she has not chosen to prefer an appeal from the decree passed against her. Our view that as against Defendants 1 to 3 the plaint was filed only on 26-3-1119 is not based on Section 22 of the Indian Limitation Act, 1908. We are aware the law in Travancore as embodied in Section 23, Travancore Limitation Act (6 of H00) was different from that enacted in S. 22 of I the. Indian Limitation Act. No substitution or addition of any Defendants as envisaged in Section 23, of the Travancore Act ever took place in this case. We therefore uphold the lower Court''s decision that the suit was haired as against Defendants 1 to 3 when it was laid against them on 26-3-1119. The lower Courts'' decree dismissing the suit as against them Is therefore confirmed.
As against Defendant 4 there is a decree for Rs. 1,376-12-0 with interest and costs. We have said that in the absence of an appeal by her it is unnecessary to consider whether the lower Court was right in holding that the suit was laid against her as early as 22-6-111.9 when the pauper application was presented. Viewed in the unit of Section 23 of the Travancore Limitation Act, the position is anomalous that the suit should be deemed t6 have been filed on a particular date-as against her and on a subsequent date as against the other Defendants.
Section 22 of the Indian Limitation Act shows that the law docs not discountenance such an anomaly. Whatever that be, consistently With die view that .the suit against Defendant 4 was well within lime, we cannot find any juslllieulloii for limiting the decree to the extent of the consideration the lower Court found was binding on the minors. Defendant 4 executed the bond in her own right and as the guardian of .the minors. In her personal capacity she was liable for the whole debt.
The lower Court therefore went wrong in limiting the decree to a part of the claim. The decree against Defendant 4 is accordingly modified by'' granting the Plaintiff a decree for the full claim as laid in the plaint viz., Rs. 3,000/- (principal amount of Rs. 2,000/- plus interest amounting to one-half) with interest thereon at 4 per cent, on die principal amount till the date of the lower Court''s decree (10-8-1950) and thereafter at the same rate of interest on the aggregate amount till realization with Plaintiff''s full cost bolero the lower Court. Under Ext. A, whatever interest Defendant 4 had in the hypothec stood charged for the debt. Hence the Plaintiff can sell for the debt the interest, if any, Defendant 4 has over the hypothesis. Time for payment six months.
Subject to the above modification in the lower Court''s decree as against Defendant 4, the appeal will stand dismissed. In the circumstances of the case we make no order for costs in this Court.