THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1175 of 2010 March 25, 2011 Between: Kommineni Reddappa Naidu, S/o.K.Munaswamy Naidu ... Appellant And Moore Venkatramana Reddy, S/o.Late Sida Reddy ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1175 of 2010 JUDGMENT: The appellant is the defendant. Being aggrieved by the judgment and decree dated 19.8.2010 in A.S.No.103 of 2009 passed by the Court of the III Additional District Judge, Tirupati, confirming the judgment and decree in O.S.No.548 of 2007 on the file of the Court of the Additional Senior Civil Judge, Tirupati, he filed the instant second appeal. The respondent instituted the suit for recovery of a sum of `2,42,533/- with future interest at 6% per annum on the principal amount of ` 1,00,00/- from the date of the suit till the entire amount is realized. The suit was based on a promissory note dated 07.11.2001. The defendant opposed the suit. He pleaded discharge. According to him, he paid ` 15,000/- on 18.3.2006, and ` 50,000/- on 06.6.2006. During the trial, the respondent examined two witnesses and marked ten documents. The appellant examined himself as D.W.1 and marked Exs.B1 to B4. The trial court disbelieved the plea of discharge and decreed the suit. The defendant’s appeal being A.S.No.103 of 2009 was again considered by the appellate Court including the plea that the appellant is entitled to the benefit of Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938 (A.P. Act 4 of 1938). The appeal was dismissed. In this second appeal, the Counsel for the appellant submits that the Courts below failed to appreciate the plea of the appellant that he being an agriculturist is entitled to the benefit of A.P. Act 4 of 1938, that the plea of discharge was proved, and that the Courts below failed to appreciate the evidence properly. The Counsel also submits that during the pendency of the appeal, the appellant paid an amount of ` 1,10,000/- by way of a cheque but the first appellate Court, without taking the same into consideration, dismissed the appeal. It is well settled that in a suit for promissory note if the defendant’s plea is one of discharge, entire burden lies on him to prove the same. A finding of fact is recorded by both the Courts below that the appellant failed to establish the payments made on 18.3.2006 and 06.6.2006 towards part-payment. That being the case, no interference is called for in an appeal under Section 100 of the Code of Civil Procedure, 1908. The submission of the Counsel for appellant that during the pendency of the appeal, defendant made payment is no relief for the purpose of appeal. This plea can be taken by the appellant in the execution petition, if any, filed by the respondent. The second appeal is misconceived and is, accordingly, dismissed. _______________ (V.V.S. RAO, J) March 25, 2011 YS