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Madras High Court
Seshu Gurukkal And Anr. vs Somasundara Mudaliar And Ors. on 7 November, 1909
Equivalent citations: 5 Ind Cas 764
Bench: R Benson, A Rahim


1. The first point argued by the appellants is that the suit is barred by Article 36 of Schedule II of the Limitation Act.

2. With regard to this, the defendant’s Vakil raises a preliminary objection that the question of limitation was decided by the District Judge when making an order of remand to the District Munsif prior to the final hearing of the appeal and contends that as the appellants did not appeal against the order of remand, it is not open to them now, with reference to Section 591 of the Code of Civil Procedure (1882), to appeal against the decision on the question of limitation. He relies on the decision in Subbalakshmamma v. Venhatarayudu 32 M. 318 at p. 320. No authority is quoted in that case and it appears to be in conflict with previous decisions of this and of other Courts Subba Sastri v. Balachandra Sastri 18 M. 421, Savitri v. Ranoji 14 B. 232, Khorag Prosad Bhagat v. Durdhari Bai 14 A. 348, Kanto Proshad Hazari v. Jagat Chandra Datta 23 C. 335. But assuming without deciding that it is open to the appellants to raise the question, we do not think that the suit is barred by Article 36, since the suit is based on the contractual relation of master and servant existing between the plaintiffs and the 1st and 2nd defendants before Exhibits A and B were executed; and there was an acknowledgment of liability by the 1st and 2nd defendants in Exhibits I) and D, on the 2nd August 1897, i.e., within 3 years of the filing of the suit. There is a dispute as to whether Exhibits D and I), were executed on the 2nd July or 2nd August; and the finding of the District Judge is not clear, but on the evidence we agree with the District Munsif that the date of Exhibits D and Dl, is the 2nd August 1897.

3. On the merits the finding is that the loss of the jewels was directly due to the negligence of the 1st and 2nd defendants and on that finding we think the decree is right. We do not think that the liability of the 1st and 2nd defendants is limited by the sums named in Exhibits A and B or can be attenuated or got rid of by showing that other persons not before the Court were also negligent in their duty. We dismiss the second appeal with costs.

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