Kanujnakkal Thayikkandiyil Moossan Kunhi Kalandan vs Kaniyarakkal Thayikkandiyil Kunhi Kattyali and Others

Kunhi Raman, J.—The third defendant is the petitioner. He was the payee of the suit promissory note and he had endorsed the note to the

plaintiff. The suit note was executed by defen-dants 1 and 2 in favour of the third defendant on the 22nd September, 1932. An endorsement of

payment of Rs. 5, which appears on the suit promissory note and which bears date 15th September, 1935, was relied on for saving limitation as

against defendants 1 and 2. The date of endorsement of the suit promissory note by the third defendant to the plaintiff was 9th December, 1935.

The learned District Munsif who tried the case has held that the endorsement of payment of Rs. 5 which was relied on for saving limitation was

fabricated by the third defendant and that the suit was barred by limitation as against defendants 1 and 2. Regarding the third defendant the trial

Court has held that he is liable because he has admittedly endorsed the promissory note to the plaintiff and it was not shown at the trial how he

could escape liability.

The learned Advocate for the third defendant-petitioner puts forward the following contentions: (1) that the trial Court should have held that the

suit was barred by limitation against the third defendant also, because it is Article 73 of the Indian Limitation Act that applies to the case, and (2)

that the suit against the third defendant should have been dismissed, because there was no evidence of notice of dishonour.

In my view both these contentions are not well-founded. As pointed out in the decision reported in Jagannadha Reddiar Vs. Lakshmana

Reddiar, , the liability of the endorser of a promissory note arises only on the date of endorsement. In the present case the date of endorsement

was clearly a few months prior to the date of the institution of the suit. Therefore the suit as against the third defendant was not barred by limitation.

Regarding the contention that the third defendant was entitled to notice of dishonour, as argued by the learned Advocate for the plaintiff-

respondent, in view of the fraud practised by the payee in endorsing the promissory note to the plaintiff after it became barred by limitation and

with a fabricated endorsement of payment of Rs. 5, there was no necessity to give notice of dishonour to the third defendant. See Section 98 of the

Negotiable Instruments Act and Wirth v. Austin (1875) L.R. 10 C.P. 689 and Terry v. Parker (1837) 6 Ad. And E. 502 : 112 E.R. 192.

In these circumstances I hold that the view taken by the trial Court is correct and dismiss this Civil Revision Petition with costs of the plaintiff-

respondent.