The acknowledgment of a debt in a promissory note can be sufficient to save limitation under Section 19 of the Indian Limitation Act.

Wallace, J.

1. This Civil Revision Petition is against the judgment and decree of the lower Court in Small Cause suit. The suit was inter alia for money due on a promissory note in the following circumstances: On 8th November 1921 the first defendant executed a promissory note, Ex. A, to one Subba Nayakar. On 30th October 1924 Rs. 235 was due on this note. For this amount the 1st defendant executed a fresh promissory note, Ex. B, in favour of the same promisse. Both the notes have been transferred to the plaintiff.

2. The main point in the case was whether Ex. B was enforceable as a promissory note. It is admittedly insufficiently stamped under the amended Stamp Act, as it bears only an one-anna stamp. The lower Court, however, has admitted it in evidence as an acknowledgment of the debt in Ex. A, for which purpose it is sufficiently stamped, has held that it serves to keep the debt alive, and has given judgment for the sum claimed. The defendants put in this Civil Revision Petition and contend that the lower Court has erred in law in holding this view.

3. Three main contentions have been argued before me: (1) that Ex. B was inadmissible for any purpose, (2) that even assuming that it is admissible as an acknowledgment of the debts in Ex. A, that debt has been discharged and therefore no claim can be founded on it; and (3) that even taking the Subordinate Judges view that the suit can be founded on the debt in Ex. A, the amount decreed is too large. A subsidiary contention of Defendants Nos. 2 and 3 who are sons of the 1st defendant is that they are not liable for the debt as it was not for family purposes.

4. The last contention may be shortly dismissed. The Defendant No. 2 was ex parte in the suit; the Defendant No. 3, a minor, represented by the Defendant No. 1 did not raise the point in his written statement or challenge the plaintiffs claim that the money was borrowed by the Defendant No. 1 as manager for family purposes, and the point was not pressed before the lower Court. Clearly it cannot be taken here. It raises matters of fact of which the plaintiff was never put to proof.

5. As to the admissibility of Ex. B the lower Court has, as pointed out, rejected it as a promissory note, but admitted it as an acknowledgment of the debt in Ex. A. It is pointed out by the plaintiff that under Section 36 of the Indian Stamp Act this Court cannot go behind the decision of the lower Court in a matter of; this kind. This section has been interpreted in many cases as of a mandatory nature and as applying also to a Court of appeal or revision, independently of the fact whether the admissibility was challenged in the lower Court or not, and I must hold that it precludes this Court from interfering with the decision of the lower Court on this matter.

6. The case in Venkatarama Iyer v. Chella Pillai [1921] 40 M.L.J. 479 is no doubt a case in which the objection was not taken before the first Court; but the rulings in Ramasami v. Ramasami [1882] 5 Mad. 220 Devachand v. Hirachand Kumarai [1889] 13 Bom. 449 (F.B.); and Nagappa Chettiar v. V.A.A.R. A.I.R. 1925 Mad. 1215; are cases where objection was taken at the beginning. I am not at present prepared to go further and admit the respondents contention that, once it has been admitted, it can be used for any purpose. These are remarks no doubt in 13 Bom 449 which might go to support that contention; but it may be pointed out that in that case, although the first Court had admitted the documents as bonds, the lower appellate Court admitted them as promissory notes, and therefore the High Court was precluded by Section 36 from questioning their admissibility as promissory notes. I take it that this Court is not bound under Section 36 to admit the document any further or for any other purposes, than the lower Court has admitted it.

7. The lower Court has clearly admitted it only as an acknowledgment of the debt in Ex. A. It has not been admitted, and cannot be admitted, here as an acknowledgme