1. The plaintiff -respondent sued to recover a sum of money upon an account stated on the 14th December 1874, between defendant and himself, which, however, was not signed by the defendant or his agent duly authorised in this behalf. The Subordinate Judge held that the claim was barred by Article 64, Schedule ii of Act XV of 1877, the new law of limitation. It is not necessary to give his reasons, which indeed are not very clear: one item of Rs. 15, however, the Subordinate Judge thought might be in time under Article 64. On the merits, however, he held that there had been no adjustment of accounts on the day named, and he appears to have discredited the plaintiff's claim altogether, including the item of Rs. 15 referred to above, and he dismissed the suit. The plaintiff in appeal to the Judge urged that Act IX of 1871 applied and not the more recent Act. The Judge, considering the bearing of Section 2, Act XV of 1877, of the words ' nothing herein shall be deemed to affect any title acquired under Act IX of 1871,' held that plaintiff had acquired a right under that Act to sue on accounts stated within three years from the date upon which the accounts were stated, and also that Act XV of 1877 did not bar the claim. On. the merits the defendant had contended that all his accounts with plaintiff had been settled and closed in 1927 Sambat. He had failed to establish this plea, producing no accounts of his own, though on a former occasion he had relied upon his books in proof of money being due to him. On the other hand, the Judge, for reasons assigned by him, held the books produced by plaintiff and other evidence on his behalf to be entirely satisfactory in proof of the truth of the claim, which he decreed in full with costs, reversing the decree of the Subordinate Judge.
2. It is contended that the suit is certainly governed by the provisions of Act XV of 1877, that no balance in adjustment of account was proved, and that the reasons assigned by the Judge for accepting the plaintiff's accounts were insufficient. It appears to us that the Judge has misapprehended Section 2, Act XV of 1877. The words 'title acquired, or to revive any right to sue barred under that Act, or under any enactment thereby repealed,' do not affect the claim in the way suggested by the lower Appellate Court: a right of action is one thing and the completion of a title is another thing. The plaintiff's right of action did not accrue by reason of Act IX of 1871, but because, according to his averment, on a certain day a sum of money was found to be due to him from the defendant on accounts stated between them. The limitation law simply provided a period within which the right of action must be exercised. The plaintiff acquired in this case no 'title,' to use the words of the Act, under Act IX 1871, or any other Acts thereby repealed. Act XV of 1877 is certainly the law of limitation to be applied to the suit.
3. But the claim as brought upon an account stated is not covered by Article 64, Act XV of 1877, inasmuch as the accounts though stated in writing are not signed by the defendant or his agent duly authorised in this behalf. The plaintiff, therefore, cannot claim the benefit of this article, and if the suit is to be entertained at all, the claim must be brought under some other article in Schedule ii, if the plaintiff desires to save limitation. The Judge has found in favour of the correctness of the plaintiff's accounts and the indebtedness of the defendant, and has, on the evidence, held that defendant did not settle and close accounts with plaintiff as contended in Sambat 1927. Assuming, then, that the plaintiff cannot avail himself of the limitation provided in Article 64, Act XV of 1877, he may be regarded as suing merely for money lent to the defendant, and it may be that some portion of the moneys lent may not be barred by limitation and therefore is claimable from the defendant, and under the Judge's view of the case any such sum would still be due. The Subordinate Judge has suggested that Rs. 15 are within the period of limitation, if Article 64 does not apply to the claim, but this would not be sufficient to enable us to dispose of the appeal.
4. The Judge should ascertain and determine whether any and what sums included in the claim are within the period of limitation of three years from the dates of the loans of such sums, and return his finding on this issue. On receipt of the finding one week will be allowed for Objections, and at the expiration thereof the appeal will be decided.
Description of suit. Period of Time from which period begins
limitation. to run.
For money payable to the Three years.
plaintiff for money, When the accounts are stated
found to be due from the in writing signed by the
defendant to the plaintiff defendant or his agent duly
on account stated between authorized in this behalf,
them. unless where the debt is, by
a simultaneous agreement in
writing signed as aforesaid,
made payable at a future time,
and then when that time arrives.