An acknowledgment of liability made by a defendant can save a suit from the bar of limitation, even if the acknowledgment is not pleaded in the plaint, provided that the acknowledgment is not inconsistent with the ground set out in the plaint.

V. RAMASWAMI, J. :- The plaintiff is the appellant. He filed the suit to set aside a claim order dated 20-9-1974 passed in E. A. 541 of 1973 in O.S. 173 of 1971 on the file of the learned Subordinate Judge, Tirunelveli or, in the alternative to pass a preliminary mortgage decree for the plaint amount with subsequent interest. The total amount claimed in the suit was Rs. 56.615. The suit O.S. 173 of 1971 was filed by the second defendant against the first defendant on 23-12-1971 for the recovery certain amount of money and that was decreed on 31-1-1973. In execution the said decree, the second defendant attached certain immovable properties of the first defendant on 10-7-1973, and brought the properties to sale. At that time the plaintiff who is the elder brother of the first defendant filed E. A. 7 of 1973 praying that the properties should be sold subject to an equitable mortgage in his favour on the ground that there were certain money dealings between him and his brother and a sum of Rs. 56615 was due and as security for the payment of the money, the first defendant had equitably mortgaged the suit Properties. That petition was dismissed. Thereafter the present suit has been filed.

2. The second defendant contended that the equitable mortgage claimed by the Plaintiff in his favour was not genuine, that it was created for the purposes of depriving the second defendant of the fruits of his decree and that in fact the first defendant did not owe any money at all to the plaintiff and because of the relationship between them. collusively and in order to deprive the right of the second defendant, proceed against the first defendant, they have created certain bogus transactions of dealings.

3. It may be mentioned that the first defendant remained ex parte.

4. The trial court did not believe the pleas of the plaintiff regarding the money dealings between the plaintiff and the first defendant and held that no money was due to the plaintiff on such accounts. The court below also held that the equitable mortgage pleaded was not genuine.

5. In this appeal the plaintiff did not question the finding on the genuineness or validity of the equitable mortgage claimed by him. However, the learned counsel for the appellant contended that the appellant was 'entitled to a money decree against the first defendant especially when he had remained ex parte, and did not deny his liability. The learned counsel for the second defendant, however, argued that the plaintiff was not to be given any decree unless he satisfies this court that he is entitled to such a decree on the ground that any decree obtained by him might in a future execution proceeding affect the chances of the second defendant to recover the full decree amount from the first defendant. The learned counsel for the second defendant also contended that on the face of it if the suit were to be tried only for the money claim, the suit is barred by limitation.

6. The allegation in the plaint is that the borrowing, on the basis of a running account, started from April 1967. The account was verified and settled and a sum of Rs. 13000/- was found due by way of principal. On 20-2-1971. for the said sum of Rs. 13000 the first defendant executed a passbook in favour of the plaintiff undertaking to repay the same with interest at 18 per cent per annum and also agreed to pay the same rate of interest for the future borrowings also. He further alleged that there was a running account and the first defendant was periodically borrowing from the plaintiff and there were also some repayments. On 4-2-1972 the first defendant is alleged to have created an equitable mortgage by deposit of title deeds with regard to the plaint schedule properties and gave a letter on that date along with the registration copy of partition deed dated 17-1-1927 as his title deed. It is further stated that even after the execution of the equitable mortgage the first defendant continued to borrow and a sum of Rs. 38000 was