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Govinda Chandra Chakravarti Vs. Nirod Kumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal588,50Ind.Cas.747
AppellantGovinda Chandra Chakravarti
RespondentNirod Kumar Banerjee and ors.
Excerpt:
civil procedure code (act v of 1908), section 97 - limitation act (ix of 1908), section 3--accounts, suit for--limitation, plea of, mot taken, lei ore preliminary decree, whether can be take of under final decree--interest cm money collected and not accounted for, whether should be allowed. - 1. this appeal arises out of a suit for accounts. there was a preliminary decree for accounts passed on the 2nd may 1913. a commissioner was appointed and a final decree for accounts was made on the 31st march 1914. that decree was affirmed on appeal and a second appeal has been preferred by the defendant.2. the first question that arises is whether the court of appeal below was wrong in overruling the plea of limitation taken before it on the ground that no appeal had been preferred against the preliminary decree. we think that the learned subordinate judge was right in the view he took of the matter.3. it is contended before us that under section 3 of the limitation act the suit must be dismissed even though limitation was not set up as a defence. but the defendant is precluded under.....
Judgment:

1. This appeal arises out of a suit for accounts. There was a preliminary decree for accounts passed on the 2nd May 1913. A Commissioner was appointed and a final decree for accounts was made on the 31st March 1914. That decree was affirmed on appeal and a second appeal has been preferred by the defendant.

2. The first question that arises is whether the Court of Appeal below was wrong in overruling the plea of limitation taken before it on the ground that no appeal had been preferred against the preliminary decree. We think that the learned Subordinate Judge was right in the view he took of the matter.

3. It is contended before us that under Section 3 of the Limitation Act the suit must be dismissed even though limitation was not set up as a defence. But the defendant is precluded under Section 97 Civil Procedure Code, from disputing the correctness of the preliminary decree, assuming that the Munsif was wrong upon the question of limitation. The learned Subordinate Judge moreover points out that this objection of limitation was not taken in the written statement--no issue was directed upon it and the question was a mixed question of law and fact. However that may be, the defendant was precluded from raising the question of limitation, as he did not appeal against the preliminary decree.

4. So far as the final decree is concerned, three objections were raised before us on behalf of the appellant. The first is that he ought not to have been held liable for certain rents due from tenants 'which became barred after he had been' dismissed from service. But the defendant did not make over the collection papers which would have shown whether any rent was going to be barred by a limitation. The learned Munsif observed a as follows: 'Before the paper were in received from him, the plaintiff was not in a position to ascertain the nature and Wt extent and particulars of the demand from tenants. As the papers were furnished at a time when the claim for 1315 and 1316 was barred, the defendant has been properly made liable for the period up to 1316.' The same view has also been taken by the lower Appellate Court, in these circumstances we are unable to hold that the Courts below are wrong.

5. The next objection relates to certain payments of rent alleged to have been made to the superior landlord. But neither the collections nor payments of rent made after the dismissal came within the scope of the suit, which is one for accounts up to the date of his dismissal. That being so, the Courts below were right in not going into the question of such payments alleged to have been made.

6. The last objection relates to interest upon the amount collected by the defendant. We do not see why the defendant should not pay interest for the plaintiff's money collected by him and not accounted for.

7. The appeal accordingly fails and is dismissed with costs.


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