MAHABIR PRASAD Vs. SAMPAT LAL

JUDGEMENT

(1.) WHETHER the word 'or' used on Article 125 of the Limitation Act, 1963 (for short the Act) in the column 'time from which period limitation begins to run' was disjunctive 'or' used in column 3 (time from which period begins to run) has to be read as 'and' or just 'or', is the short but significant question for determination in the present revision under Section 115 of the Code of Civil Procedure, 1908, (for short the Code), filed by the Defendant judgment debtor against the Plaintiff Respondent, the decree holder. The civil revision was directed against the order dated 20 -4 -91 passed by Sri D.R. Singh, District Judge, Jalaun, rejecting the judgment debtor's application under Order 21 Rule 2, as time barred and the objections under Section 47 of the Code and directing execution case No. 13 of 1980 to proceed.

(2.) FACTS of the case are almost admitted. The opposite party Sampat Lal, the Plaintiff had filed a suit in the Court of Judge Small Causes for the relief of ejectment and arrears of rent and damages, from the premises in suit. The suit was decreed on 20 -12 -79 and revision filed by the Defendant -judgment -debtor under Section 25 of the Provincial Small Cause Courts Act was rejected on 18 -5 -80. By that time a sum of Rs. 3278.33 had become due from the judgment debtor, against whom execution application was made and it was registered as Execution Case No. 13 of 1980. The judgment debtor filed objection under Section 47 of the Code. On view of the provisions of Order 21 Rule 1 of the Code all money payable under a decree was to be paid by depositing in the court, whose duty is to execute the decree, or the amount has to be sent to that court by postal money order etc. In case the payment is made out of court to the decree holder by postal money order or through bank, or by any other means wherein payment is evidenced in writing, or otherwise as the court executing the decree directs. In case payment was made by depositing in court or otherwise, as to the court directs, in view of Rule 1(a) and (c), the judgment debtor must give a notice to the decree holder either through court or otherwise. In case of payment to Bank or Money Order the original suit No. etc. has to be given. Rule 2 of Order 21 indicates payment out of court to the decree holder. It provides that where any money payable under a decree of any kind is paid out of court to the decree holder, or a decree of any kind is otherwise adjusted in whole, or in part to the satisfaction of the decree holder, he must certify such payment or adjustment to the court and the court shall record the same accordingly. Sub -rule (2 -A) of Rule 2 provides that no payment or adjustment shall be recorded at the instance of the judgment debtor unless the payment is made in the manner provided under Rule 1 or the payment or adjustment is proved by documentary evidence. Sub -rule (3) of Rule 2 provides that any payment or adjustment which has not been certified or recorded as aforesaid, was not to be recognised by any court executing the decree. In view of this provision the payment or adjustment was to be certified by the decree holder.

(3.) LEARNED Counsel for the applicant urged that the application was within time and the period of 30 days may be counted from the date when the entire payment was made i.e. 21 -9 -80 and not from the date when the adjustment was made on 30 -5 -80. In case limitation is counted from 21 -9 -80, it shall be within time. This argument leads to the conclusion that the word 'or' used in column 3 of Article 125 was not disjunctive, but the same was conjunctive. Learned Counsel for the opposite party, on the other hand, urged that the period of 30 days under Article 125 has to be counted from the date adjustment was made, i.e. 30 -5 -80 and not from the date payment was made and the word 'or' used in column 3 cannot be read as the word 'and'. Article 125 of the Limitation Act is set out below: