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2002 DIGILAW 531 (AP)

Kotarl Kasulanuna v. Gontini Chilukamma

2002-04-09

DUBAGUNTA SUBRAHMANYAM

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision petition is filed against the judgment dated 17-6-1999 in S. C. No. 40 of 1995 on the file of the Senior Civil Judge, anakapalle. ( 2 ) THE plaintiff is the revision petitioner. She filed the suit on the basis of two promissory notes dated 25-8-1991 and 25-6-1991 (Exs. A-1 and A-3 respectively) said to have been executed by the husband of the defendant in favour of the plaintiff. On Ex. A-1 pronote, there is a part-payment endorsement dated 20-4-1992 (Ex. A-2 ). On ex. A-3 pronote, there is a part-payment endorsement dated 20-4-1992 (Ex. A-4 ). She wanted to recover a sum of Rs. 5,500/- payable under the above two pronotes after deducting the part-payments made by the husband of the defendant. The defendant contested the suit denying the execution of the two pronotes as well as the two part payment endorsements. On the basis of the evidence adduced by both the parties, the trial Court found that the two pronotes as well as the two part-payment endorsements (Exs. A-1 to A-4) are true, valid and binding on the defendant. However, he dismissed the suit holding that the suit is barred by limitation. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred the present revision petition. ( 3 ) THE Trial Court relied upon ajudgment of a learned Single Judge of this Court in S. Laxmaiah (died) per L. Rs. v. V. Venkateswara Rao (died) per L. Rs. . In that case, the suit pronote was executed on 2-11-1968. The suit was filed on 2-11-1971. There was no plea or issue to the effect that the suit was barred by limitation. However, in the second appeal before the High Court, it was contended that the suit was barred by limitation. The learned Judge in Para 16 of her judgment held that since the suit was filed on 2-11-1971 beyond the period of three years, the suit is barred by limitation. No discussion was made by the learned Judge for giving a finding that the suit was barred by limitation. ( 4 ) IN my considered opinion, the said judgment of the learned Single Judge of this court is per incuriam. No discussion was made by the learned Judge for giving a finding that the suit was barred by limitation. ( 4 ) IN my considered opinion, the said judgment of the learned Single Judge of this court is per incuriam. The provision contained in Section 12 (1) of the Limitation act, 1963 (for short the Act ) was not brought to the notice of the learned single Judge in the above second appeal. Section 12 (1) of the Act lays down that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. The learned Single Judge pronounced the judgment in the above case without considering the provision in section 12 (1) of the Act. The provision in section 12 (1) of the Act is based on the general rule and applies to suits, appeals and applications referred to in the Act. Thus, where time is to be computed from the date of the cause of action, the day on which such cause of action arises is to be excluded. If, in respect of a cause of action, there is an acknowledgment within the meaning of section 18 of the Act, the day of the acknowledgment is to be excluded. If the attention of the learned Single Judge was drawn to the provision contained in section 12 (1) of the Act, she would not have held in her judgment that the suit was barred by limitation. ( 5 ) THE learned counsel for the revision petitioner relied upon a judgment of the madras High Court in K. Ramakrishna Landa kathir v. Narayanaswamy. In that case, the suit was filed on the basis of a promissory note. The Madras High Court held that the provisions of Section 12 of the Act postulate exclusion of certain time in legal proceedings and it provides that in computing the period of limitation for suit, appeal or application, the day from which such period has to be reckoned shall be excluded. The Madras High Court further held that if Section 12 is applied, the day on which the promissory note was executed has to be excluded. ( 6 ) THE Madras High Court followed a judgment of the Bombay High Court in vinayak v. Kasabar. The Madras High Court further held that if Section 12 is applied, the day on which the promissory note was executed has to be excluded. ( 6 ) THE Madras High Court followed a judgment of the Bombay High Court in vinayak v. Kasabar. The Bombay High Court following the earlier judgment of the said court, held in the above decision that both in view of the provisions of Section 12 of the act and Section 9 (1) of the General Clauses act, it is clear that the day on which the acknowledgment is made will have to be excluded in computing the period of limitation of three years. I respectfully follow the above decisions of the Madras high Court and Bombay High Court. I hold that the judgment of the learned Single judge of this Court in S. Laxmaiah s case (1 supra) is not a good law and the Trial court committed an error in holding that the suit was barred by limitation following the above decision of this Court. It is thus clear that the suit is not barred by limitation and the judgment and decree of the Trial Court are liable to be set aside. ( 7 ) IN the result, the revision petition is allowed. The judgment and decree of the trial Court in S. C. No. 40 of 1995 are set aside. The said suit is decreed with costs. The plaintiff shall recover from the defendant the suit amount with future interest on the principal amount at 12% per annum from the date of the suit till the date of realization from out of the assets of her husband Saibunaidu available in her hands. No costs.