Swami Aiyangar alias Srinivasa Varthachariar vs Lakshmi alias Echammal

Abdur Rahim, J.—It is admitted by the pleader for the plaintiff-respondent that there is no evidence to shew that the 1st defendant made any payment by which limitation would be saved so far as the claim against him is concerned. But it is argued that no issue was framed on this point audit is alleged in paragraph 6 of the plaint that two sums of twelve rupees and nine rupees were paid in 1906. But paragraph 5 of the 1st defendant''s written statement traverses that statement as false. The two bonds were executed on the 24th October 1904 and the 12th February 1905, respectively, and it is for the plaintiff to make out that her claim under these bonds was subsisting against the 1st defendant on the date of her suit which was instituted in 1909, and as she failed to do so, the Subordinate Judge ought to have dismissed the suit.

It is conceded by the plaintiff''s pleader that the position of the 1st defendant was that of a surety. That being so, payment of interest by the 2nd defendant, his principal debtor, would not save limitation against the 1st defendant - see Gopal Daji v. Gopal Bin Sonu I. L. R. (1903) B. 248, and the respondent''s pleader has not attempted to argue that the exposition of law in that case is not correct.

The petition must be allowed and the plaintiff''s suit dismissed against the 1st defendant with costs here and in the court below.