Dave, J.—This is an Ijlas Khas appeal by the plaintiff against the judgment and decree of a Division Bench of the High Court of the former State of Jodhpur, dated the 6th of December 1948.

2. A few facts, which are no longer in dispute between the parties, may be briefly stated for proper appreciation of the case. Both the praties are residents of Mundwa village which is situated in Nagaur district. Appellant No. 1 Sitaram is an adopted son of Govindram and appellant No. 2 is his widowed mother. It is common ground between the parties that Govindram, adoptive father of appellant No. 1 and Heeralal, father of the respondent Hariprasad had monetary dealings prior to Samwat 1988. On Kartik Vad 9 Samwat 1988 an account was settled between them and a balance of Rs. 4700/- was found against the resopndents father payable to Govindram. There were no further advances or payments from one side to the other after that date.

3. The appellants case in the trial court was that on Kartik Sud 1 Samvat 1997, the respondents father executed a document (marked Ex. P.l) admitting his liability to pay Rs. 10,574/- on that date. The suit was based on this document and the plaintiff prayed for the recovery of Rs, 10,574/- principal and Rs. 4,265/4/- as interest on the said sum at the rate of -/12/- per cent per mensem, in all Rs. 14,839/4/-. The respondent denied the execution of Ex. P. 1 by his father and further pleaded that the suit was barred by time.

4. It may be pointed out here that the suit was originally filed in the court of the District Judge, Jodhpur, but later on it was transferred by the High Court to its own file and was tried by a learned single Judge of that court on the original side. On the pleadings of the parties, the following issues were framed:—

(1) Was Ex. P-l executed by defendants father Heeralal ? P.

(2) (a) Is the suit within time on account of payment of Rs.6/-in Samvat 1990 and Rs. 206/- in Samvat 1994 ? P.

(b) Whether Heeralal admitted the debt from time to time within the period of limitation ? P.

(3) Whether Ex. P.-l amounts to a new contract within the meaning of sec. 25 Marwar Contract Act ? P.

(4) To what interest is the plaintiff entitled ? P.

(5) Relief? P.

5. The learned Judge decided issue No. 2(1) issue No. 3 and issue No. 4 against the plaintiff, but since issue Nos. 1 and 2(b) were decided in his favour, a decree for the principal amount of Rs.l0,574/-plus Rs. 2,491/12/ for interest at the rate of 6% from the date of the suit to the date of decree i.e. in all for Rs. 13,065/12/- with future interest at 6% was passed in the plaintiffs favour with proportionate costs. It was directed that the account be realized from the estate of Heeralal in the hands of the respondent. Against this decree dated 30th of July, 1948, the respondent went in appeal. The learned Judges of the first appellate court came to the conclusion that the appellants had failed to prove that Ex. P.-5 was executed by the respondents father. They also found that Ex. P.-l was a mere acknowledgment and not an account-stated as held by the trial court. It was also held that the appellants had not based their suit on the basis of the accounts between the parties and were unable to prove the various acknowledgments alleged by them. The appeal was therefore allowed and the suit was dismissed with costs throughout. Being aggrieved by this decision, the plaintiffs filed an Ijlas Khas appeal which has come before us for decision.

6. Learned counsel for appellants has urged that the first appellate court had committed error in holding that the execution of Ex. P.-l by Heeralal was not proved, and that the said document was not covered by the term "account-stated" as envisaged by Art.64 of the Indian Limitation Act. The questions which, therefore, arise for our determination are:—

(1) Whether the execution of Ex. P,-l by the respondents father Heeralal has been proved by the appellants.

(2) Whether the present suit has been based on "accounts-stated and Ex. P.-l f

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