This appeal is filed by the plaintiff in a suit for realization of a sum of Rs.47,550.39 with future interest and cost. Plaintiff and defendant were the partners of a firm “Lions Knitting Industries”. The firm had availed a loan from Canara Bank and the Bank filed O.S.185/1978 on the file of the Sub Court, Kochi and obtained a decree on 22.11.1980 against the firm. It is stated that the plaintiff had mortgaged his property to the Bank and in execution of the decree the property was brought to sale and the plaintiff paid an amount of Rs.71,154.40 on 14.2.1985. There were earlier two payments of Rs.1000/- each and altogether the plaintiff paid Rs.73,154.50. According to the plaintiff, the plaintiff is entitled to recover half of the amount paid by him from the defendant who was the other partner of the firm. Though the plaintiff demanded the amount as per lawyer notice dated 24.5.1986, the defendant did not reply to the notice nor paid the amount. Hence the suit was filed for the relief as stated above.

2. The defendant filed a written statement contending that the mutual obligations between the partners ceased on 4.12.1982 and alleged payments if at all true was voluntary and hence it cannot bind the defendant. The suit having been brought after three years is bared by limitation. It is also stated in paragraph 5 of the written statement that be did not participate in the execution proceedings and he was not aware of any payment having been made by the plaintiff. Therefore, he denied and put the plaintiff to strict proof thereof.

3. In the trial court the plaintiff produced Exts.A1 to A3 and the defendant produced Ext.B1. The plaintiff was examined as P.W.1 and the defendant did not get into the box. After the trial, the trial court has dismissed the suit finding that the plaintiff has not produced any evidence to show that he has made the payment to the bank. On the question of limitation, the trial court found that the suit was not barred by limitation.

4. In this appeal the learned counsel for the appellant submits that in the written statement there was no specific denial of the payment made by the plaintiff and even in the cross-examination of the plaintiff the question put was whether the payments were made voluntarily. He argued that when the averments with regard to payments were specifically in the plaint, the defendant was expected to make specific denial as otherwise necessary presumption will have to be drawn and there is no burden on the plaintiff to prove things which were not specifically denied.

5. Though the learned counsel for the respondent attempted to argue that the finding on limitation entered by the trial court is wrong, I am not satisfied that there is any merit in that argument. The suit being essentially one for contribution by the defendant who was a judgment debtor in the earlier suit, the period of limitation would start when the plaintiff paid the entire amount for and on behalf of the other judgment debtor. Admittedly the suit is filed within three years of such payment. Therefore the finding of limitation by the trial court cannot be assailed by the respondent.

6. The point for consideration in the appeal is whether the trial court was correct in dismissing the suit for contribution on the ground that the plaintiff did not adduce any evidence for payment of decree amount to the Bank when the defendant did not specifically deny the payments made by the plaintiff in the written statement.

7. In the plaint the plaintiff has stated in paragraph 3 as follows:

“To discharge liability of the decree holder bank, plaintiff had no other go but to arrange the balance decree debt and that on 14.2.1985 plaintiff paid Rs.71,154.40. The said amount was excluding 2 payments of Rs.1,000/- each made earlier to the decree holder bank. Altogether plaintiff has paid Rs.73,154.40 to the decree holder bank of which he was liable to pay only Rs.36,577.20. Hence plaintiff is entitled to recover Rs.36,577.20 from th