A suit is not barred by limitation if filed to prevent the claim from becoming barred, as per Kerala Act 31 of 1958.

1 The only question for consideration in this case is whether the suit is barred by limitation. The suit is on a promissory note dated 3rd August 1956 and it was filed only on 25th June 1961.

2 The learned advocate of the petitioner draws my attention to the decision in Mooppantakathu Puthiya Purayil Mammad v. Chirammal Abdul Salam 1963 (1) KLR 137 by Velu Pillai, J. My learned brother, on the authority of some decisions of the Madras High Court arising under Madras Act I of 1955, has held that a decree debt gets split up into instalments under the provisions of Act 31 of 1958 and the same has to be executed as if it were an instalment decree. I may straightaway observe that this decision relates to the execution of a decree and not to a debt on which a suit is filed. Regarding suits this Court has already held in Mudirappoyil Kallari Ammad v. Valiaparambath Poyil Pokkan (C. R. P. No. 427 of 1961) that since there is no bar of suit under S.3(2) of Act 31 of 1958, the creditor cannot claim any extension of the period of limitation for the institution of the suit. This view was expressed even in earlier cases (Vide Sankaran v. Kumaran (1962 KLT 390) and the Division Bench ruling in Vellantakath Puthiyapurayil Athrumankutty v. Mukkadi Parambil Chavara 1963 (1) KLR 129. Therefore, whatever might be the position regarding the execution of a decree, in a case relating to a debt on which a suit has to be filed, the creditor cannot claim any extended period of limitation under Act 31 of 1958. In that view the present suit is barred by limitation.

3 Now that reliance is placed on the Madras decisions based on Madras Act 1 of 1955, it will be instructive to consider the scheme of that Act and compare it with the scheme of Kerala Act 31 of 1958.

4 Under S.3(1) of the Madras Act the institution of suits and applications for execution is barred for four months from the commencement of the Act. Sub-s.2 of the section then provides that where a debtor filed a suit during the said four months or thereafter, after the agriculturist, has paid or deposited the instalments specified in S.4(1) and during the period when he is so entitled to pay, the court shall in decreeing the suit direct the plaintiff to bear his costs and pay the costs of the defendant. The effect of these two sub-sections is that no suit nor execution petition can be filed for four months and if a creditor files a suit during those four months or thereafter, in both cases he has to pay the costs of the defendant. S.4(1) thereafter makes provision that the debtor shall be entitled to pay within the said four months the interest due on the debt and one instalment, and the balance in three subsequent annual instalments. This sub-section covers both decree debts and other debts. Sub-s.2 of S.4 lays down that in respect of a decree passed before the commencement of the Act if the debtor fails to make any of the payments, the decree holder shall be entitled to execute the decree in respect of the instalments in default. Sub-s.3 of this section deals with suits filed after the commencement of the Act; and in such cases, the court in decreeing the suit shall provide for the immediate payment of the instalments accrued due and make provision for the balance to be paid in instalments as specified in sub-s.1. Sub-s.3 of S.4 has evidently to be read along with sub-s.2 of S.3; and when they are read together the result is that the creditor, if he files a suit after the commencement of the Act, will get a decree for the immediate payment of the instalments accrued due and will get an instalment decree for the balance; and he will have also to pay the costs of the defendant. The only other provision which has to be noted in this section is sub-s.7 thereof, which enacts that the provisions of sub-s.1 of S.4 shall, for the purposes of execution, be deemed to be a subsequent order of court within the meaning of S.48(b) of the Code of Civil Procedure. Two other provisions of the Act may also be no