JUDGMENT
1. This appeal arises out of a suit for recovery of the amount alleged to be due by the defendants Muhammad Abid Husain Khan and Musammat Zainab Bibi to the plaintiffs. The Court below gave a decree for the amount claimed as against the defendant Muhammad Abid Husain Khan but dismissed it as against the female defendant. Abid Husain Khan has appealed against the decree.
2. The circumstances are these. There were money transactions between the plaintiffs and the defendants and at the time when the sarkhat, to which we shall presently refer, was signed, there was a sum of Rs. 6,839-2-9 admittedly due by the defendants to the plaintiffs, but the debt was statute barred. It was agreed between the parties that of this sum of Rs. 1,339-2-9 should be remitted leaving a balance due of Rs. 5,500. The plaintiff paid an additional sum of Rs. 250 to the defendant-appellant and he thereupon signed the following sarkhat.
3. "Sarkhat in favour of Lala Mathura Mal Bhagwan Das resident of Shahganj Bazar Sambat 1960, interest at the rate of Rs. 1-8-0 per cent, per mensem, debit Bhadon Badi 7th Sambat 1960 received in cash Rs. 5,750-0-0 signed Musammat Zainab Bibi, wife of Muhammad Abid Husain Khan, and Muham mad Abid Husain Khan himself. Received Rs. 5,750 in cash by the pen of Muhammad Abid Husain Khan general attorney of the said Musammat." Then under date Bhadon Sudi 14th there is an acknowledgment of the receipt in cash through Jaisri Misra of Rs. 30 and under date Sawan Sudi 14th Sambat 1960 to 1961 interest at the rate of Rs. 1-8-0 percent, per mensem viz., Rs. 700 is entered showing a total indebtedness at this date of Rs. 6,480-0-0. Subsequently a sum of Rs. 200 was advanced under date Sawan Sudi 14th and a Sarkhat was signed by Muhammad Abid Husain Khan as general attorney of his wife and for himself, in which there is -an* admission of the balance due under the older Sarkhat of Rs. 6,480 and there is the additional entry of Rs. 200. For the purpose of recovering this debt and interest the suit was brought.
4. The defendant-appellant set up the defence that the sarkhats in question are mere acknowledgments of an old debt which, was statute barred and consequently the action could not be maintained. They further put forward the case that at the time the first sarkhat was given there were negotiations between the plaintiffs and the defendants for the purchase of the property of Musammat Zainab Bibi for a sum of Rs. 20,000 and that the arrangement between them was that the old debt to the extent of Rs. 5,500 should be accepted in satisfaction of a proportionate part of the price and the balance of the purchase money should be paid in cash by the plaintiffs to the defendants and that the sarkhat for Rs. 5,750 was given on the faith of this contract that the plaintiffs subsequently refused to carry out the contract and in so doing perpetrated a fraud on the defendants.
5. If there was any concluded agreement for the sale, of the property of Musammat Zaihab Bibi, the obvious course for the defendant to have adopted, was to bring a suit for the specific performance of that agreement but years have been allowed to elapse and no such suit has been instituted. The charge of fraud is, we think, groundless and the only question we have to determine is whether or not the transaction under date Bhadon Badi 7th Sambat 1960 which, corresponds with the 15th of August 1903, is such as entitled the plaintiffs to maintain this suit. It is clearly not a mere acknowledgment of a statute barred debt because the defendant in it admits the receipt in cash of the sum of Rs. 5,750 and undertakes to pay interest upon that amount at the rate of Rs. 1-8-0 per cent, per mensem. Portion of the sum which the defendant-appellant agreed to pay was no doubt part of a statute barred debt but portion viz., Rs. 250 was a fresh advance and the document itself embodies a new contract and is not a mere acknowledgment of an old debt. It is to be borne in mind that at the date when the sarkhat was signed Rs. 6,839 odd were due and that the plaintiffs agreed to remit a sum of Rs. 1,339. In addition to this they made a present advance of Rs. 250 to the defendant-appellant and in view of this it seems to us that this document must properly be treated as a new contract. It maybe that the amount of the old debt was not actually paid and then repaid, there was no necessity for paying with one hand and taking back with the other but the parties intended that the transaction should be, regarded as a new contract to secure the amount specified in it, namely Rs. 5,750-0-0 with interest. In the case of Jodharaj v. Raghavgir P.J. 1893 p. 48 referred to in the case of Vasudeo Anant v. Rama Krishna Rao Narayan 24 B. 394 it was held that defendant's conduct in, borrowing a fresh sum and making up and signing an old account must be taken as a promise which was the foundation of a new contract. We think that the Court below was in this point of view justified, in passing the; decree which it did and we think that there is no force in this appeal. We dismiss it, with costs including fees in this Court on the higher scale.