1. The second appeal was preferred by the defendants 1 to 3in O.S. 223 of 1990 on the file of the Munsiff's Court, Koyilandy. The first respondent herein instituted the suit against the appellant and another (4th defendant) seeking a decree of declaration that the revenue recovery proceedings initiated against the first respondent is barred by limitation and to restrain the appellants by a decree of permanent prohibitory injunction from realising any amount from the first respondent by revenue recovery in pursuance of Ext.A1 notice dated 2.5.1990.

2. The appellants, the State and their officials, contended that the revenue recovery proceedings initiated were not at all barred by limitation and that the suit is not maintainable because of the bar under Section 72 of the Revenue Recovery Act and prayed for dismissal of the suit.

3. After raising the issues, the parties were sent for trial. During the course of trial, the first respondent was examined as PW.1. The Excise Inspector, Koyilandy, was examined as DW.1. On the side of the first respondent, Exts. A1 to A4 were marked. On the side of the appellants, Exts.B1 to B4 were marked. The learned Munsiff, on appraisal of the evidence on record, arrived at a finding that since the recovery proceedings were initiated within thirty years, it is not at all barred by limitation and that the suit is hit by Section 72 of the Revenue Recovery Act. Consequently, the suit was dismissed.

4. The first respondent took up the matter in appeal as A.S. 33 of 1993 before the Subordinate Judge, Koyilandy. The Subordinate Judge, by the impugned judgment dated 7.2.1996, allowed the appeal on entering into a finding that the period of limitation is only three years and hence revenue recovery proceedings are barred by limitation and that since appellants 1 to 3 failed to initiate any action against the 4th respondent also, who is jointly liable for the amount covered by Ext.A1, there is fraud and since there is fraud on the side of the appellants, the suit is not hit by Section 72 of the Revenue Recovery Act, as then it was. Consequently, the appeal was allowed. Now the second appeal.

5. The following are the questions of law that arise for consideration:

i. Whether the liability due from the first respondent is barred by limitation?

ii. Whether the failure of the appellants to initiate action against the second respondent who is jointly liable with the first respondent would amount to fraud?

6. The brief facts leading to the suit is as follows: Respondents 1 and 2 jointly bid the right to run two toddy shops bearing Nos. 19 and 22 of Koyilandy Range for the year 1968-69 and 1969-70. After executing Exts. B1 and B2 agreements, inter alia agreeing to remit the bid amount jointly and severally, they run the above toddy shops for the relevant years. Since the respondents failed to discharge the liability as per Exts. B1 and B2, Ext.A1 demand notice was caused to the first respondent on 2.5.1990. The first respondent in the plaint would contend that he was liable to pay only half of the kist amount. According to him, he had paid the same and for the balance half, the second respondent alone is liable and no revenue recovery proceedings are sustainable against him.

7. Heard Sri. P.R. Jayakrishnan, learned Government Pleader and the learned counsel for the respondents.

Point No. 1.

8. Article 112 of the Schedule of the Limitation Act would show that the period of limitation for a suit on behalf of the State would be 30 years and not three years. Schedule 112 of the Limitation Act reads thus:

Description of suit Period of limitation Time from which period begins to run

"Any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by Thirty years When the period of or on behalf of the Central limitation would begin to Government or any State run under this Act against Government, including the a like suit by a private Government of the State person." of Jammu