1. The plaintiff sued to recover money advanced by him on mortgage to the defendant's father, on the ground that he had been ousted from the possession of the land mortgaged, possession to which he was entitled under his mortgage. He had previously sued in O.S. No. 59 of 1903 on the file of the District Munsif to recover possession of the land but had failed, the Courts finding that he had never obtained possession, and apparently that the then 1st defendant, Velu Sethurayan, was entitled to possession as against him.
2. In the present suit the defendant's guardian pleaded that the defendant was not liable to repay the money because the plaintiff had held possession of the land for seven years before he was ousted, i.e., up to 1902. She also pleaded that the suit was barred by limitation, having been instituted more than 3 years after the date of dispossession. This appears to have been the ground of her plea of limitation, though it is new (sic)t out in the Written statement.
3. The only issue tried was the question of limitation, and the Subordinate Judge held that the period was 6 years and not 3, and the suit was, therefore, not barred, and he passed a decree for the plaintiff.
4. Some months later the defendant's guardian applied for a review of judgment on the ground that the judgment in the suit of 1903 showed that the plaintiff had never taken possession, and, therefore, the limitation period must run from 1895, the date of the mortgage.
5. The Subordinate Judge admitted the review, and dismissed the suit on the ground put forward by the defendant.
6. It is contended for the respondent that I have no power now, at the hearing of this petition, to revise the decree of the Subordinate Judge, under Section 25 of Act IX of 1887, to go into the question whether the application for review was rightly admitted. The argument is this: Section 629 of the Code provides that objections to application for review may be taken in an appeal from final decree, but that section does not apply to Small Cause Courts; therefore, this Court cannot entertain such objections. This Court is not a Small Cause Court, and I am empowered by Section 25 of Act IX of 1887 to satisfy myself that the decree is in accordance with law. In doing so it seems to me I am entitled just as I would be if I were hearing an appeal under the Code of Civil Procedure to see whether a review has been allowed in contravention of the provisions of Section 623 of the Code which does apply to Small Cause Courts.
7. I am clearly of opinion that the review in this case ought not to have been allowed. The only evidence on which the defendant now relies was available before the commencement of the suit. Its existence, indeed, was pointed out by the plaint itself. The plaintiff relied on the decree in the suit of 1903 to show that the consideration for his advance had failed. As a matter of fact it appears that copies of the judgments were in the hands of the defendant's guardian before the suit was disposed of. The copies presented with the application for review were obtained before that. There can, therefore, be no doubt that the evidence was not such that it could not have been produced if the defendant's guardian had been duly diligent. There was no ground for review and the application ought to have been dismissed.
8. Then it is argued that I ought to interfere when a reversal, of the decree will have the effect of making a minor suffer for his guardian's default. I am not inclined to listen to any such argument in the present case. It is not denied that plaintiff advanced the money, and he came within the time with his suit for possession: he then discovered that ho had been deceived by the defendant's father (I assume that he had never taken possession, but that makes little, if any, difference) and he instituted his suit for the money. The merits are all on his side so far as can be judged from the papers in the case, and the claim is not stale.
9. I reverse the revised decree of the Subordinate Judge and restore his former decree with costs throughout.