Madras High Court
K. Chockalingam vs K.R. Ramasamy Iyer And Jenbagam on 8 April, 2004
ORDER M. Thanikachalam, J.
1. The plaintiff, who was successful before the trial Court in O.S.No.147/97, on the file of the District Munsif, Thiruthuraipoondi, was unsuccessful, when the matter was taken on appeal, in A.S.No.64/2001 and the result is this revision petition.
2. The revision petitioner as plaintiff had filed a suit against the respondents, for the recovery of a sum of Rs.12,130.54, on the basis of a promissory note, executed by them on 27.4.1987. It is the case of the plaintiff, that the defendants, had acknowledged the debt on various dates, as evidenced by Exs.A3 to A5 and therefore, the suit is in time or in other words, the suit is not barred by limitation.
3. The respondents/defendants opposed the claim of the plaintiff, on various grounds, including the defence of limitation. According to defendants, even as per the case of the plaintiff, exhibits A4 & A5, endorsements have not been made by both the defendants, and therefore, the suit must be held, as barred by limitation.
4. The learned District Munsif, appreciating the evidence placed before him, came to the conclusion that the suit is not barred by limitation, and the plaintiff is entitled to a decree as prayed for. In this view, the suit came to be decreed on 27.3.2001, which was impugned in A.S.No.64/2001, on the file of Sub Judge, Tiruvarur.
5. The learned Subordinate Judge, Tiruvarur, came to the conclusion, that the debt was not acknowledged by both the defendants, that when the same was acknowledged by one of the defendants, the acknowledgment was not on behalf of other defendants also, on the basis of authorisation. In this view, he came to the conclusion that the suit in its entirety, is barred by limitation. Thus, setting aside the decree and judgment of the trial Court, the appeal is allowed, ordering dismissal of the suit in entirety, which is under challenge in this revision.
6. Heard the learned counsel for the petitioner, Mr. Mr. V. Viswanathan and the learned counsel for the respondents, Mr. A. Muthukumar.
7. The learned counsel for the respondents submits, that the revision itself is not maintainable, and therefore, question of deciding the case on merits, setting aside the findings of the appellate Court, would not arise for consideration. The further submission of the learned counsel for the respondents, is that the suit is clearly barred by limitation. No other points were raised before this Court, regarding the execution or passing of the consideration of the promissory note, as well as questioning the genuineness of the endorsements.
8. The learned counsel for the revision petitioner submits, that the revision as such, is well maintainable under Section 115 C.P.C., if not, at least under Article 227 of the Constitution of India, for which there is no objection from the other side. In this view, the C.R.P. could be decided on merits. The learned counsel for the revision petitioner further submits, that the dismissal of the suit by the first appellate Court, allowing the appeal in entirety, is erroneous and at least the plaintiff is entitled to a decree, against the first defendant, who had acknowledged the debt, periodically, the further fact being, the suit is filed within three years from the last date of acknowledgment.
9. Ex.A1 is the promissory note executed by both the defendants, not disputed. A2 is the endorsement made by the first defendant alone, paying a sum of Rs.4000/- somewhere in the month of August 1989. Ex.A3 is the endorsement by both the defendants on 7.12.1989. The promissory note came into existence on 27.4.1987 and therefore, Ex.A3 endorsement saves to the limitation up to this point. A3 endorsement does not bear the date, though it is made by the first defendant, paying a sum of Rs.1000/- in the year 1992. Adjacent to this endorsement, there is a writing by pencil indicating that the endorsement was made on 7.12.1992, which must be, after the endorsement (Ex.A4) dated 21.11.1992 and in this view, it was amended as 7.7.1992. Though, Exs.A4 & A5 endorsements were made by the 1st defendant, they were not made by the second defendant also, and therefore, the dates are not going to change the case. From Ex.A3, it is seen the first defendant acknowledged the debt, whether it is on 7.7.1992 or 7.12.1992. From the date of the endorsement of Ex.A5, viz., 21.11.1992, within three years, the suit was filed, on 21.11.1995. Therefore, as far as the 1st defendant is concerned, the suit must be held in time and admittedly, the second defendant had not signed in the endorsement and had not acknowledged the debt, within the prescribed period of limitation, and there cannot be any decree against the second defendant. This glaring aspect, which ought to have been considered by the first appellate Court, has not been properly considered and I should say, it is a flagrant violation, defeating the right of the plaintiff, which survives at least against 1st defendant.
10. The learned counsel for the respondents submits that the suit is liable to be dismissed even against the first defendant, in view of the fact, it was a joint borrowing, where one of the borrower had not acknowledged the debt. The submission appears to be, on the basis that the debt is indivisible and therefore, unless both the defendants have signed the endorsements and acknowledged the debt, there cannot be saving of limitation, against one defendant alone, who had acknowledged the debt. In support of the above contention, he relied on a decision in Alagappan, TKT v. Vimala Balasubramanian (2001 (4) CTC 164).
11. In the above cited case, question of acknowledgment of a mortgage debt came into consideration. In that case, it seems, number of persons had executed a mortgage, on which basis a suit was laid. The fact would disclose, that endorsement of payment had been made by two mortgagors, leaving others. The co-mortgagors though have acknowledged the debt, had no authority or power to sign on behalf of other co-mortgagors. Further, under law, mortgage being one and indivisible, on the basis of the acknowledgment by some of the co-mortgagors, question of splitting the mortgage would not arise, because of the fact, the mortgage is indivisible. Only under this background, E. Padmanabhan, J. has held, that when a mortgage was executed by several mortgagors, endorsement made by two mortgagors, that too, without authority, will not save the limitation, as far as the other mortgagors are concerned, those who have not acknowledged the debt. Because of the indivisibility of the mortgage, it is held, that the suit must be held barred by limitation and this principle cannot be extended to a promissory note.
12. Promissory note will not come within the meaning of "indivisible debt". There can be a decree against a person, who acknowledged the debt, dismissing the claim against the person, who had not acknowledged the same, if the acknowledgment was not made, with the authority of the other person, in writing or otherwise, under any implied authority. In this case, though the defendants are husband and wife, it cannot be said, in general, that the husband could act as an agent of the wife always, unless that kind of plea is made, supported by evidence. As seen from the endorsement, the first defendant had signed the acknowledgment or the payment of the amount or evidencing the payment, only in his individual capacity and not in the capacity as the agent of his wife. In my considered opinion, the indivisible principle applicable to mortgage cannot be extended, to a promissory note and therefore, there can be a decree against the person, who acknowledged the debt, dismissing the claim against the person, who has not acknowledged the debt. Unfortunately, this fact was overlooked by the first appellate court, thereby, in my considered opinion, there is a flagrant violation of justice, defeating the right of the plaintiff, for no fault of his own. In this view, this Court should come to the aid of the plaintiff, to set right the mistake, otherwise, the plaintiff may not have any remedy, which he is entitled to ordinarily, on the basis of the above established and admitted facts. Thus, having settled this position, that there can be a decree against the first defendant, now we have to see, whether the revision is maintainable. If so, whether the mistake committed by the first appellate Court could be rectified.
13. This revision is filed only under Section 115 C.P.C. The suit is one for the recovery of less than a sum of Rs.25,000/- After the suit was decreed, an appeal has been preferred, which was allowed nullifying the lower courts decree and judgment. Section 102 of Code of Civil Procedure Code says, no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money, not exceeding Rs.25,000/-. In view of this provision, a second appeal is barred and that is why, a revision is filed under Section 115 C.P.C., which is not maintainable, according to the learned counsel for the respondents. When there is a specific bar for filing the second appeal, when the suit is for recovery of money, not exceeding Rs.25,000/-, it should be held, a revision is also not maintainable under Section 115 C.P.C. Section 115 C.P.C. empowers the High Court, to call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto. From the wordings deployed in the above Section, it is clear, the High Court is empowered to entertain a revision, when no appeal is provided or where no appeal lies. In other words, if the code provides, an appeal provision, from the decree and judgment of the subordinate court, then ordinarily invoking Section 115 C.P.C. is not possible. In this case, against the decree and judgment passed by the District Munsif Court, in O.S.No.147/97, an appeal provision is provided, and an appeal has been preferred also. Then, considering the pecuniary jurisdiction of the suit, the second appeal is prohibited or barred. In this view, it cannot be said, no appeal is provided against the decree and judgment, thereby to invoke Section 115 C.P.C. under the guise of revisional power. If the cases of this nature are allowed to be entertained under Section 115 C.P.C., it would amount to eclipsing Section 102 C.P.C., which aims the curtailment of Second appeal, in the sense, prolonged litigation. Where the subject matter is less than Rs.25,000/-, the High Court invoking Section 115 C.P.C., if maintains the revision, it would amount to second appeal under the label of Civil Revision Petition, thereby allowing the parties, to file second appeal, indirectly, ignoring Section 102, thereby defeating the intention of the legislature, which should not be allowed. In this view of the matter, I am of the considered opinion, the revision petition under Section 115 is not maintainable.
14. The learned counsel for the petitioner realising this difficulty alone, as aforementioned, has filed a memo for the conversion of Cr.P.C. under Section 227 Cr.P.C. which is permissible. In Sadhana Lodh v. National Insurance Co. Ltd. , the Hon'ble Supreme Court has held, when alternative remedy is available, interference under Article 226/227 of the Constitution of India, is not permissible. It is observed:
"Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 C.P.C. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution."
15. In this view, it is held, where a remedy for filing a revision petition under Section 115 is barred in such cases, petition under Article 227 of the Constitution of India, is maintainable. In this view, this petition could be treated, as one filed under Article 227 of the Constitution of India, and not under Section 115 C.P.C. Then, the remaining question is, whether under the power conferred upon this Court under Article 227, the orders passed by the lower court can be set aside.
16. The only question arises in this revision is whether the suit is barred by limitation or not. Under the Limitation Act, irrespective of the defence raised, on the basis of the limitation, it is the bounden duty of the court to find out, whether the suit is in time or not. Thus, a duty is cast upon the court, to go into the question of limitation and decide the same according to law. As aforementioned, even as per the endorsement, as fairly conceded by the learned counsel for the respondents, except limitation, no other dispute. Since the first appellate Court has failed in its duty, and committed in my considered view, a flagrant violation, defeating the right of the plaintiff, to grant a decree against the first defendant, the same has to be set right under Article 227 of the Constitution of India, for which there cannot be any grievance, from the respondents. In this view of the matter, the decree and judgment passed by the appellate Court is liable to be set aside and there shall be a decree as prayed for, against the first defendant alone. To the above said extent, the revision is to be allowed.
In the result, the revision is allowed to the above said extent, setting aside the decree and judgment of the appellate Court, in A.S.No.64/2001 and there shall be a decree as prayed for, against the first defendant alone, with costs, restricted to the trial Court alone, dismissing the suit against the second defendant, without costs.