SHADIKHAN Vs. R H ROYAN

JUDGEMENT

(1.) THE question that arises in this civil revision petition is whether the execution petition is in time. The decree put in execution was passed on 5-12-1956. The execution petition, which is the subject matter of this petition, was presented in court on 10-8-1960. The decree-holder relied on certain payments made by the defendant for which he had given credit to for saving limitation. The agent of the decree-holder filed an affidavit in which he gave particulars of payments made by the defendant. The Registrar Court of Small Causes, Madras, who heard the application by the decree-holder for arrest of the judgment debtor for recovery of the arrears of the decree amount, held that the application was in time, as the defendant himself admitted that he paid towards the decree in July 1959. In the N. T. A. No. 88 of 1961 the Court of Small Causes came to the conclusion that as the payments were not certified by the court and as there was no reference either in the execution petition or in the affidavit of the decree-holder's agent that any payment made outside court was certified, the execution of the decree was barred by time. Against this order the present revision is filed by the decree-holder.

(2.) IT was contended by the learned counsel for the petitioner that under S. 21 R. 2 C. P. C. the decree-holder can certify any part payment towards a decree at any time provided that part payment was made within 8 years of the prior execution application. It is no doubt true that there is no period of limitation prescribed for the certification of payment by the decree-holder. But the payment should be within 3 years of the previous execution application. It admitted that the decree-holder did not certify the payment and have it recorded by the Court. It is now contended as there was a payment in July 1959 within three years of the previous application and as the execution petition was filed on 10-8-1960, the application was in time. Learned counsel for the petitioner strongly relied on Masilamani mudaliar v. Sethusami Aiyar, I L R 41 Mad 251: (AIR 1918 Mad 620) in support of his contention. In that case, it is held that as regards payments acknowledged in the execution application, they cannot be ignored as not certified, if they were as a matter of fact made. In that case in the application the payments were acknowledged. It was held that the payments as they were set forth in column 5 of the execution petition could be accepted as certificate of payments under clause (1) of the rule, though no time for certification or the manner of certification was prescribed under the rules. If the payment is specifically mentioned in the execution application, that payment will have to be considered in the light of S. 20 of the Limitation Act. In Rajam Iyer v. Anantharatnam Aiyar, AIR 1916 Mad 958 (2) a Bench of this court held,

(3.) IN the result I agree with the finding of the Court of Small Causes and hold that the decree is barred by limitation and not executable. The petition is dismissed.