1. This second appeal arises out of a suit instituted against the appellants who carry on a gold business, for money deposited on foot of Sarkhats and which now amounts to a total sum of Rs. 1399-15.

2. The Subordinate Judge dismissed the suit on the ground that it was not maintainable, the defendants having been adjudicated insolvents under the Presidency Towns Insolvency Act (Act III of 1909).

3. The plaintiff then preferred an appeal to the District Judge, who found that the insolvency order had been annulled and that the suit was maintainable. He accordingly made a decree for Rs. 1,227-13 against the defendants, and declined to go into the question of limitation. It was contended before him by the defendants that the suit came under Article 59 of the 1st Schedule of the Limitation Act, and that the period of limitation was three years from the date of the loan and that a part of the loan at least, namely that part which was prior to the 4th of August 1911, was barred by limitation.

4. The plaintiff on the other hand argued that the case came under Article 60 and that the money had been deposited with the defendants as bankers.

5. The learned District Judge declined to go into the question of limitation, because he said that it had not been raised in the Court below and no cross appeal had been preferred before him. In this he was clearly in error. The point was raised in the written statement. Moreover the question of limitation can by law be raised at any stage of the proceedings and it is always the Courts duty, whether it is raised or not, to see whether the claim is barred. We accordingly when the second appeal first came before us remanded the case to the District Judge to consider the question of limitation, and he has now returned a finding in a judgment dated 7th February 1917, in which he expresses the clear opinion that the account between the plaintiff and the defendants was an account between a customer and his banker and that the deposit was not in the nature of a loan which would come under Article 59. This is a finding of fact which would seem to conclude the case.

6. But the learned Vakil for the appellants before us submits that the learned District Judge has not directed his mind to the evidence in the case but has merely come to his finding upon the document itself. We cannot assume that the learned District Judge has been entirely unmindful of the evidence in the case. There is nothing to show that he arrived at his finding merely upon the perusal of the Sarkhat. The parties were represented before him by Pleaders and it must be presumed that they placed all the relevant evidence before the learned District Judge.

7. In these circumstances we do not think we ought to go behind the finding of the learned District Judge and make a fresh remand in order that the evidence in the case may be re-considered. It is found as a fact that receipts and payments were given and made between the plaintiff and the defendants in the capacity of customer and banker till the 19th April 1911, and as the suit was filed on the 17th April 1914 no part of the claim is barred.

8. The plaintiff is entitled to a decree for interest at the rate of 6 per cent from the date of the suit till the date of the decree and 6 per cent thereafter till the date of realization.

9. The result is that the appeal is dismissed and the cross-objection is decreed. The appellants will pay the respondent the costs of the cross-appeal.