SUJAN SINGH Vs. SARDAR HAR BAKSH SINGH

JUDGEMENT

(1.) THIS is a special appeal against the judgment of a learned Single Judge of this Court and the only question is of limitation. The appeal arises out of a suit for contribution. There was a rent decree against both the parties. The Plaintiff -Respondent paid his share of the decree on the 19th of April, 1933. The decree -holder applied for execution of the rest of the decree against the Plaintiff -Respondent. He objected but his objections were dismissed. He went up in appeal and then applied for staying of the execution proceedings. The stay was granted on the condition that the Plaintiff -Respondent deposited cash security in the court below. The Plaintiff -Respondent deposited Rs. 585 which appears to be the share of the decree payable by the Appellant on 13th July, 1936. On 7th September, 1938 the appeal was dismissed. The decree -holder, however, realised the amount from the treasury on 6th January, 1939. The Plaintiff -Respondent then filed a suit for contribution under Section 149 of the U.P. Tenancy Act for the recovery of Rs. 585 from the Defendant -Appellant. The Defendant -Appellant pleaded the bar of limitation. According to him, the limitation commenced to run from the date on which the amount had been deposited in court or in any case on the date on which the appeal was dismissed.

(2.) THE suit was decreed by both the courts below. In second appeal to this Court, a learned Single Judge dismissed the second appeal with certain modifications with which we are not concerned. The only question is whether the suit is barred by time and the argument is that on the date on which the appeal was dismissed the decree -holder became entitled to realise the amount from court. We do not consider that the dismissal of the appeal is the crucial date. The amount was deposited in the court not as payment to the decree -holder under the decree but as security under Order 41, Rule 5 of the Code of Civil Procedure Where the security amount is in deposit, it can only be withdrawn if the decree -holder applies to the court for executing his decree by the payment to him of the decretal amount out of the amount in deposit. The security deposit in court does not ipso facto without an order of the court become the property of the decree -holder. In this view of the matter the date on which the court ordered the payment to be made to the decree -holder should be taken as the date from which the amount in deposit would be deemed to be a payment by the Plaintiff to the decree -holder. That order is not before us but presumably it was made on the date on which the amount was withdrawn, namely, the 6th of January, 1939.