VITHALRAO GOPALRAO Vs. RAMKISHEN WAMAN

JUDGEMENT

(1.) THESE three appeals arise from orders in execution proceedings. As the proceedings were disposed of in the Court below by a common judgment, these appeals can also be decided here by one and the same judgment. The circumstances leading to the execution petitions, which have given rise to these appeals, may be briefly stated as follows; The appellants (who will hereafter be referred to as the decree-holders) obtained an instalment, decree against the respondents (who will hereafter be referred to as the judgment-debtors) for a sum ot Rs. 30,000/- on 22-10-1935. The decretal amount Was payable by annual instalments of Rs. 2,000/ -. There was a default clause, which provided that on the failure of the judgment-debtors to pay three instalments the decree-holders were at liberty to en-force the payment of the entire amount due till then. The first instalment became payable on 28th Teer 1346 F. (May, 1937 ). It appears that three instalments fell into arrears by May 1939. The decree-holders, therefore, started execution proceedings on 8th Shehrewar 1348f. for the recovery or the entire decretal amount in case No. 36/3 of 1348f. On 27th Isfindar 1349f. (30-1-1940), the judgment-debtors paid a sum of Rs. 2400/- in the Court towards part satisfaction of the decretal amount. The pleader for the decree-holders gave up his claim for the recovery of the full amount for the time being. The District Judge passed an order, which, translated into English, reads thus: "that the execution petition is dismissed for part execution. The file be consigned to records". Thereafter, in 1942, a sum of Rs. 2,000/- was paid in the Court by one Rajabhaoo, the son of judgment-debtor No. 1. This payment was accompanied by an application, which bore the signature of Advocate Vaishnav, who represented the judgment-debtors in the original suit as also in the Darkhast proceedings. On 5th June 1944, the decree-holders started execution proceedings in Case No. 31/3/53f (F. A No. 331 ot 1957) for the enforcement of two instalments. The question arose as to whether that execution petition was in time. It is not disputed that this petition is beyond three years from the date of disposal of the previous Darkhast of 1348f. (1938-39 ). The trial Court held that one of the two instalments was in time and the other was barred by limitation. There was an appeal to the Hyderabad High Court (995 of 1354f.) It was held by that High Court that inasmuch as the decree-holders had exercised their option in 1348f. (1939) for enforcing the default clause, it was not open to them to ask for the recovery of instalments. It was also held that the Darkhast was not preferred within three years from the date of the final order in the previous Darkhast. Therefore, even assuming that the Darkhast could he treated as a Darkhast lor a part of the amount that had become due, still it was barred by limitation. It was ihen pointed out on behalf of the decree-holders that the judgment-debtors had paid a sum of Rs. 2,000/- in the year 1942 and that this payment saved the Darkhast irom limitation. It was not clear from the record as to whether this payment was made by any person, who was duly authorised to make the same by the judgment-debtors. The execution petition was, there-fore, remanded to the Court below for deciding the question as to whether the alleged payment of Rs. 2,000/- in 1942 saved the Darkhast from limitation.

(2.) WHEN the above Darkhast was remanded to the Court below the latter appears to have passed an order on the Darkhast of 1348 F. (1939), on 17th April 1950 as follows: "file be restored as previously. Parties be informed and put up on 9th June 1950". In pursuance of this order, the Darkhast of 1939 was revived and considered along with the Darkhast that was remanded. In the meantime, on l8th October 1950 the decree-holders started fresh execution proceedings in Case No. 14/3/1950 for the recovery of the entire amount including the amount claimed in the Darkhast of 1944. All these three Darkhast were tried together. Common evidence was recorded and they were disposed of by one judgment by the court below. The executing Court came to the conclusion that the payment made by the said Rajabhaoo was not a payment maue by a duly authorised agent within the meaning ot the expression in Section 20 of the Indian Limitation Act. Consequently, it dismissed all the three Darkbasts. The decree-holders have preferred appeals in all the three Darkhasts. As stated above, these appeals can be disposed ot by a common judgment.

(3.) THE first question for our consideration is, whether the payment made by Rajabhaoo, the sou of judgment-debtor No. 1, through advocate Varsn-nav in 1942 can be regarded as payment made by the person duly authorised by the judgment-debtors within the meaning of Section 20 of the Limitation Act-On behalf of the decree-holders, judgment-debtor No. 2 Haribhaoo and advocate Vaishnav were examined. Haribhaoo admitted that he and judgment-debtor No, 1 were members of a joint Hindu family; that both of them had engaged Mr. Vaishnav as their pleader; that the two together had made certain payments towards the satisfaction of the decree and that both of them were managers of the joint family. Of course, Haribhaoo stated that advocate Vislmav was authorised to make payments only on express instructions from them. He also stated that the application that was signed by advocate Vaishnav was not put in by him witii his consent or knowledge. Advocate Vaishnav stated in his deposition that the Vakalatnama put in by him in the course of the suit expressly authorised him to make payments and also to receive payments. He also stated that as he was representing both the judgment debtors, whatever applications were made in the Court were to be treated as having been made on behalf oi both ot them. In view of this evidence, whether Rajabhaoo is regarded as an authorised agent oi the judgment-debtors or not, it is clear that, at any rate, advocate Vaishnav must be treated as the duly authorised agent on behalf of the judgment-debtors. Mr. Nandapurkar, for respondent No. 2, pointed out that the Vakalatnama expressly authorised advocate Vaishnav to make as also to receive payments in the suit. Although the Vakalatnama proceeded to say that Mr. Vaishnav should also appear in the execution petition, it merely stated that Mr. Vaishnav should receive the payment in Court. There is no express authorisation so far as execution proceedings are concerned that he should also make payments. In my opinion, the omission to make a specific mention that even in execution proceeding, Mr. Vaishnav should also pay the moneys, does not assist Mr. Nandapurkar in his argument that advocate Vaishnav was not the duly authorised agent of the judgment-debtors. There was an express authorisation so far as the suit was concerned. It is not necessary that there should be any express authorisation to appear in execution proceedings. The Vakalatnama in the course of the suit enures also for execution proceedings and whatever authority has been given to the pleader by the Vakalatnama in the suit, that authority will continue to vest in him even for the purposes of execution proceedings. It is significant to note that Mr. Vaishnav appeared in that suit and the execution proceedings on behalf of the judgment-debtors. There was, therefore, no question of his receiving any payments in execution proceedings. The omission, therefore, to specifical- ly mention that Mr. Vaishnav was also authorised to make payments in execution proceedings is obviously accidental. I must, therefore, hold that Mr. Vaishnav was authorised, under the terms of the Vakalatnarna, to make payments in execution proceedings on behalf of the judgment-debtors. If that is so, then it is clear that that was a payment, which gave a fresh period of limitation under Section 20 of the Limitation Act.