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Perumayammal and anr. Vs. Chinnammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 317 of 1961
Judge
Reported inAIR1967Mad189
ActsIndian Contract Act - Sections 25
AppellantPerumayammal and anr.
RespondentChinnammal
Cases ReferredPestonji v. Bai Meharbai
Excerpt:
- - the agency being found against and the wife not being otherwise liable for the amount due under the prior promissory note, the case has to fail on the ground of lack of consideration. it is observed- and if that is the case, a promise made by a person who under no obligation to pay the debts of another, even though they are time barred, is clearly not within this exception to the general rule'.this decision is directly applicable to the present case......1954, executed by the husband of the defendant in favour of the plaintiff. on the date when the suit promissory note was executed, the earlier promissory note executed by the husband of the defendant had got barred and was therefore not enforceable. the plea in defence was that the suit promissory note was supported by consideration. learned counsel for the plaintiff sought to rely on sub-sec (3) of section 25 of the indian contract act. but unfortunately for her the finding is that the wife has not been shown to be the agent of the husband. the agency being found against and the wife not being otherwise liable for the amount due under the prior promissory note, the case has to fail on the ground of lack of consideration. the authority for this proposition is seen in the decision of.....
Judgment:
ORDER

(1) This revision is filed by the plaintiff questioning the dismissal of the suit filed by her on a promissory note dated 22nd August 1957 executed by the defendant in her favour. This promissory note in admittedly in renewal of an earlier promissory note dated 7th August 1954, executed by the husband of the defendant in favour of the plaintiff. On the date when the suit promissory note was executed, the earlier promissory note executed by the husband of the defendant had got barred and was therefore not enforceable. The plea in defence was that the suit promissory note was supported by consideration. Learned counsel for the plaintiff sought to rely on sub-sec (3) of Section 25 of the Indian Contract Act. But unfortunately for her the finding is that the wife has not been shown to be the agent of the husband. The agency being found against and the wife not being otherwise liable for the amount due under the prior promissory note, the case has to fail on the ground of lack of consideration. The authority for this proposition is seen in the decision of the Bombay High Court in Pestonji v. Bai Meharbai, : AIR1928Bom539 . There also the wife executed a promissory note in respect of a barred debt due by her husband. The husband was alive and in her personal capacity the wife was not liable for the debt. It was held that Section 25, exception (3) implied that the person making the promise was the person against whom the liability might have been enforced. It is observed-

'And if that is the case, a promise made by a person who under no obligation to pay the debts of another, even though they are time barred, is clearly not within this exception to the general rule'.

This decision is directly applicable to the present case. The wife in the present case is under no obligation to discharge the promissory note of her husband and it is that promissory note that had become time barred.

(2) The civil revision petition fails and is dismissed, in the circumstances, without costs The C.M.Ps. are ordered.


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