Judgement

Appeal from a decree of the Court of the Judicial Commissioner (October 23, 1903), affirming a decree of the Divisional Judge of the Nerbudda Division (October 22, 1902), which affirmed a decree of the Civil Judge of Khandwa (June 16, 1902).

Two questions were involved in the appeal—(1.) whether a statement contained in a written statement filed by the respondent amounts to an acknowledgment of his liability in respect of the sum sued for within the meaning of s. 19 of the Indian Limitation Act, 1877; and (2.) whether the respondent intermeddled with the estate of his deceased creditor as executor, and if he did, whether his intermeddling with such estate saved the appellants right of suit from being barred by limitation.

The suit was brought on September 5, 1901, under the circumstances stated in their Lordships judgment, by the appellant to recover principal and interest due by the respondent as shewn by the accounts of Motiram, the deceased creditor, who carried on business as a banker. The transactions between them terminated on May 12, 1898. The respondent pleaded the Statute . of Limitations, relying on art. 57 of the Second Schedule, which prescribes a three years period. The appellant replied that " the accounts between the parties are open and current accounts, and there has been also during the dealings reciprocal demands between them, who were both big bankers "; that " the defendant has also acknowledged his liability on September 28, 1899, and has again admitted his liability on July 4, 1901, and thereby has given fresh starting point for limitation if it is held that the dealings were not mutual, open and current account within the meaning of article 85 of the Limitation Act" ; and that the respondent having acted as executor of the will of Motiram Seth from the time of his death till the final rejection of the application for probate by the Judicial Commissioner, i.e., till November 30, 1900, stood in a fiduciary relation to the appellant, and could not claim to take advantage of his position, and the suit was saved by the provisions of s. 10 of the Limitation Act.

Article 85 is as follows " For the balance due on a mutual, open and current account where there have been reciprocal demands between the parties—three years—the close of the year in which the last item admitted or proved is entered into the account; such year to be computed as in the account."

Sect. 10 is as follows " Notwithstanding anything hereinbefore contained no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property shall be barred by any length of time."

The Civil Judge was of (opinion that the cause of action in regard to each payment arose at the time the money was paid, and that the suit having been brought on September 5, 1901, i.e., more than three years after the date of the last payment, was barred by limitation under Act XV. of 1877, Sched. II., art. 57.

He was also of opinion that the suit was not governed by art. 85 of the said schedule as being a suit " for the balance due on a mutual, open and current account where there have been reciprocal demands between the parties." He decided that the period of limitation could not be extended on any of the grounds on which the extension was claimed, finding that the statement in the petition dated September 28, 1899, was not an acknowledgment of liability; that the acknowledgment of liability contained in the deposition of Rupchand made on July 4, 1901, was not signed by him, and " that the defendant did not administer Motirams estate so as to enable the plaintiff to get an extension of the period of limitation for this suit."

The first appellate Court affirmed this judgment, and the Court of the Judicial Commissioner concurred in the findings of the two Courts that the suit was barred by