(1 ) This is a Second, appeal instituted by the second defendant in a suit tried by the learned District Munsif of Vellore for recovery of Rs. 4100/- by the plaintiff Dhanabagyammal. The facts of that litigation were, very briefly stated, as follows. Defendants 1 and 2 in the suit were brothers traders and money lenders by profession. Among their business it is alleged that they carried on a jaggery business under the name and, style of Chinnaswami Chettiar and Sons. According to the plaintiff, she deposited certain monies for investment in the business, and, on the date of the plaint Rs. 4111-14-10 was due; the plaintiff relinquished a small sum and limited her claim to Rs. 4100/-. One very important fact is that there was a suit for partition between these brothers (O. S. No. 57 of 1949 on the file of the sub Court) which ended in a compromise decree. I have examined this decree, and found that under the second clause thereof, the present appellant (second defendant) definitely undertook to pay certain debts as set out in the schedules to that document. It is equally indisputable that the sixth item of schedule C to that document is the debt due to the plaintiff, then particularized is Rs. 3387-7-3 In the trial Court, the issues were whether the plaintiff deposited these amounts, and, among other additional issue No. 8.
'Whether the plaintiff can seek any relief against second defendant by virtue of the compromise decree in O. S. No. 57 of 1949'
(2) The learned District Munsif considered this matter in paragraphs 9 to 12 of this judgment, and came to the conclusion that this borrowing was a loan and not a deposit, and that the acknowledgment of liability in the partition decree in O. S. No. 57 of 1949 was made only after the debt became barred, and would not have the effect of prolonging the life of the debt.
(3) The matter came up in appeal before the learned Subordinate judge, Vellore, and be had to consider whether there was any liability of the 2nd defendant (Appellant) to be determined in the suit. The learned Subordinate Judge pointed out that the first defendant had specially acknowledged this liability in the written statement, and it is not now disputed that the Court below was justified In granting a decree in favour of the plaintiff as against the first defendant. But what the learned Subordinate Judge did, was upon the specific pleading of the first defendant, to consider whether thee third party procedure adumbrated in Order VET-A Civil Procedure Code should not be applied to the facts of the present matter. The learned Subordinate judge then observed that the first defendant would be entitled to proceed against the second defendant after payment of the Court-fee, within the scope of Order VIII-A Civil Procedure Code and granted the first defendant a decree against the second defendant under Order VIIT-A Rule 8 Civil Procedure Code. It is this decree which is the subject-matter of the second appeal.
(4) The learned counsel for the appellant (second defendant) attack., the decree in the following fashion. He claims that this party did not have sufficient opportunity to show that he was not liable to the first defendant in respect of this debt, even though the first defendant might have suffered, a decree in favour of the plaintiff. But this is not strictly correct, though it might be that the records were not formally drawn up and maintained with reference to Order VIII-A Civil Procedure Code. The relief under Order VIII-A Civil Procedure Code was referred to in the written statement of the first defendant himself, aria the first defendant undoubtedly gave notice of this claim to the co-defendant (appellant). When the appellant was cross-examined he made this very important admission:
Defendant 1 gave a list at the time of the razinamah, Ex. A-2, in which he stated that Rs. 3387-8-4 was the amount then due to P.W. 1.......... On account of this I was allotted more immovable properties in the A schedule to the razinamah. D. 1 need not pay these debts as per the terms of the razinamah. I am enjoying the family properties as per the terms of the razinamah.
In view of this specific and unambiguous admission, I do not see how it is open to the second defendant (appellant) to contend that the question of this liability undertaken by him under the compromise decree could he put in issue again. either as a mistake or as, some kind of admission due to misrepresentation. If any such claim were to he now allowed, it will really imply that the allotment of properties under the com-promise decree will have to be equally reopened, since there Is a specific admission by the appellant as D.W. 1 that he was allotted more immovable properties of which he is in possession and enjoyment because he undertook the liability to pay certain debts including the debt to the plaintiff.
(5) In substance, therefore, the appellant had sufficient, notice of the liability sought to be foist. ed on him under order VIII-A Civil Procedure Code and it is clear that on his behalf there wary an attempt made to advance the plea of limitation. Actually, the learned appellate judge hag dealt with this aspect of the matter, and he finds that if the evidence on the advance is to be accepted, that would undoubtedly constitute a de-posit to which Article 60 of the Indian Limitation Act would apply, and that the claim of the plaintiff would therefore he well within time. I think It is sufficient for me to observe that no adequate grounds have been shown before now for dissenting-from this conclusion. As regards the truth and validity of the debt, that matter cannot really be put in issue now, without reopening the entire question of the partition under the compromise decree, the properties allotted to each sharer and the additional properties allotted to the appellant because he undertook to discharge this debt as well as certain other debts.
In brief, therefore, there. are no sufficient ground, for interference with, the decree granted by the lower appellate Court under Order VIII-A Rule 8 Civil Procedure Code. It may he that it is always open to a party like the appellant, who suffers such a decree owing to tire application of third party procedure to defendants inter se in a pending suit, to later bring forward a properly constituted suit, if so advised, for a declaration that he is not bound to pay that particular debt or that that liability cannot he enforced against him. It is needless for me to observe that if the appellant chooses to bring forward such a suit, either upon the question of the debt being barred by operation of any law or otherwise, it will be equally open to the holder of the decree under Order VIII-A Rule, 8 Civil Procedure Code namely, the first defendant, to allege all pleas available to him in law, including the finality of the partition under the compromise decree, and the properties allotted thereunder. With these observations, this second appeal is dismissed, since J do not think that there is any room for interference with the order of the lower appellate Court. The parties will bear their own costs, except to the extent that the plaintiff, who has been made a party to this appeal apparently for a proper adjudication of the subject-matter, namely, her claim against the family will have her costs of court fee paid from the first defendant in these proceedings throughout.
(6) The two memoranda of cross objections which relate purely to the matter of costs, respectively filed by the plaintiff and the first defendant, are dismissed, except to the extent indicated above. No costs. No leave.
(7) Appeal dismissed.