JUDGMENT
1. This second appeal arises out of a suit brought by the plaintiff for the recovery of a certain sum of money. The allegations contained in the plaint were that dealings had been going on between the parties for a long time and accounts used to be adjusted from time to time. Accounts were finally adjusted on Magh Sudi 13th, Sambat 1981, corresponding to 21sfc February 1929, when a sum of Rs. 1,356.8-3 was found due to the plaintiffs by the defendants, and it was tin's sum together with interest at 1 p.c.p.m. which was claimed by the plaintiff. In defence it was stated that this account was wrong and that the claim was time-barred. No issue was struck by the court of first instance on the question of limitation but on the merits that court came to the conclusion that the plaintiffs' case was correct and it therefore decreed the suit. On appeal the first ground of appeal was that. In plaintiffs' claim was time-barred and the learned Judge allowed that plea to ho argued and he came to the conclusion that the plaintiffs' claim was in time only for a sum of Rs. 52-5-6 and a decree, therefore, was given for that sum together with interest.
2. In second appeal it is contended before us that the plea of limitation never having been raised before the court of first; instance and no issue having been settled on that point, the lower appellate court had erred in permitting it to be raised in appeal, particularly without giving the plaintiffs an opportunity of meeting it. It is not correct to say that the plea of limitation was never raised before the court of first instance, because in paragraph 7 of the additional plea it is distinctly stated "that their claim is time barred". It is true that no issue was struck upon that point, but we are of the opinion that by reasons of Section 3 of the Limitation Act it is incumbent upon a court to dismiss as suit if court has been filed after the period of limitation prescribed therefore by the First Schedule of the up as a defence. It was also held in the Full Bench case of Bechi v. Ahsajnullah Khan (1890) 12 All. 461, that a question of limitation when it arises upon the facts before a court must be heard and determined whether or not it is directly raised in the pleadings or in the grounds of appeal. In the present case we find that the question of limitation was directly raised both in the court of first instance as well as before the lower appellate court and that there are materials on the record on which the plea of limitation can be disposed of. It is not necessary to have any fresh evidence on that point and we are, therefore, of the opinion that the court below was justified in allowing that plea to be argued and in recording a finding on that point.
3. On the dealings between the parties it is clear that this was not a case of a mutual, open and current account to which Article 85 of the Limitation Act would apply. During the long course of dealings between the parties from the year 1971 sambat there never was an occasion when the plaintiffs owed anything to the defendants. The accounts, when they were adjusted from time to time, were never signed by the defendants and, therefore, there could be no question of acknowledgment. It was admitted by learned Counsel for the plaintiffs in the lower appellate court that they could not sue for any item of a period prior to Magh Sudi 4, Sambat 1983, corresponding to 21st January 1927, inasmuch as the suit was instituted on 21st January 1930. Even before us Mr. S.P. Sinha on behalf of the plaintiffs had to concede that if Article 85 of the Limitation Act would not apply then the plaintiffs' claim for any item prior to 21st January 1927, would be obviously barred by time the items after Slat January 1927, are Rs. 969-5-0 as found by the lower appellate court. The lower appellate court, however, has not given a decree for this amount because it says that it can be distinctly shown that the greater portion of this amount has been paid up and it has applied Section 59 of the Contract Act, Section 59 of the Contract Act runs as follows:
Where a debtor, owing several distinct debts to one person makes, payment to him, either with express intimation or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly.
4. It appears that the only reason on which the learned Judge came to the conclusion that certain payments made after 21st January 1927, must he applied to the discharge of certain items covered by the sum of Rs. 969-5-0 was that there was a resemblance in certain amounts between the credit and the debit side. Such an approximation occurs in the the case of others. But we are of the opinion that even this is not enough to bring the casa within Section 59 of the Contract Act.
5. The lower appellate court then says as follows:
Having regard to the above view of mine it is unnecessary to consider whether the defendants had formerly any firm of Gaya Ram Gajadhar Ram and whether any balance of that firm was brought forward to the khata of the present firm of the defendants.
6. He, therefore, did not decide any question of fact which was raised by the defendants, but gave a decree for the sum of Rs. 52-5-6 together with interest on that sum. It is contended before us that if we do not uphold the decision of the court below on the application of Section 59, Contract Act, we must have finding from the lower appellate court on the questions of fact which were not decided by that court. With this contention we agree. We therefore, think that before we decide this appeal finally, we must have finding from the court below on the following issues:
(1) Whether the defendants' firm Ami Chand Ram Baghunandan Ram had anything to do with the firm of Gaya Ram Gajadhar Ram? If so what is the amount due to the plaintiffs from the defendants on taking account? (2) Whether the accounts were adjusted on Magh Sudi 13th, Sambat 1981 and a sum of Rs. 772-11-0 was found due to the plaintiffs' firm by that of the firm of Gaya Ram Gajadhar Ram?
7. No further evidence will be allowed. The Court below is requested to submit its findings within two months. On return of findings the usual ten days will be allowed for objections.