Kuttappan Pillai vs Krishna Pillai

S. Velu Pillai, J.—In this second appeal by the first defendant arising out of a suit to enforce payment of defaulted subscriptions for a prized ticket in a chitty conducted by the plaintiff, the only point for determination is whether the suit is barred by limitation or not as against the first defendant. The chitty bond was an unregistered one and was executed by defendants 1 and 2, the latter being the surety for the former. As against the surety, the suit has been held to be barred by limitation being based on the chitty bond alone, but as against the first defendant the suit has been found to be within time as based on the chitty variola. There is no question that the suit is barred as against the first defendant too on the basis of the chitty bond. The Additional District Judge held following the dictum in Kulamytheen Pillai v. Maria Rosammal (1949 T.C.L.R. 88) which is only obiter, that in spite of the chitty bond the suit could be deemed to be based on the variola. The decision of the Travancore High Court to the contrary in Krishna Pillai v. The South Travancore Bank Ltd. (4 D.L.R. 70) was not followed. In the latter it was held, that when a chitty bond is taken by the foreman it supersedes the contract in the variola. This case follows a full bench decision of the Travancore High Court in second appeal 306 of 1121 and two other decisions of the same court--S. A. 88 of 1121 and Kesava Pillay Velayudhan Pillay v. Krishna Pillay Velayudhan Pillay (1948 T.L.R. 162). No decided case to the contrary bearing on this question has been brought to my notice. I follow this line of cases, in preference to the obiter dictum in the case referred to and hold, that the suit as against the first defendant must also be held to be based on the chitty bond and that he cannot sue on the variola. In this view the suit is barred by limitation as against the first defendant also. In the result the suit is dismissed as against the first defendant also, as barred by limitation. This appeal is allowed, but there will be no order as to costs as between the plaintiff and the first defendant here and in the courts below.