KRISHNAJI ANANT JOSHI Vs. BHALCHANDRA ANANT PATWARDHAN

JUDGEMENT

(1.) THIS is a second appeal arising from execution of a decree upon an award passed on April 9, 1935, and the question which falls for determination is whether the application for execution from which it arises was in time

(2.) THE decree was a decree for money, but three survey Nos. had been charged, for the decretal amount. In order to save limitation, the decree -holders relied upon two endorsements signed by the judgment -debtors. The first endorsement was with regard to payment of Rs. 5 on January 19, 1939, and the second endorsement was similarly for the payment of Rs. 5 on August 9, 1941. It is not in dispute that the first endorsement amounted to an acknowledgment of liability and saved limitation. That endorsement also bears the proper stamp. The second endorsement does not however bear one. An objection to its admissibility into evidence on the ground that it is not stamped does not appear to have been taken in the trial Court, nor was it taken in the first appellate Court either. But it is contended on behalf of the appellants judgment -debtors that that objection was not taken at the time when the endorsements were proved in the lower Court, because the decree holders never tendered either endorsement in evidence, and consequently it was not necessary for the appellants to take an objection about the admissibility of the second endorsement on the ground of absence of proper stamp.

(3.) NOW , the debt in this case was the decretal debt. It was really speaking evidenced by the decree. The judgment -debtor cannot plead any payment unless he certifies it within the 'prescribed time. There was no difficulty consequently in the way of proving the debt. On the other hand, at the time when the endorsement was taken from the judgment -debtors limitation was about to expire. It is quite clear therefore that the decree -holder obtained the endorsement from the judgment -debtors in order to save limitation. This inference is further supported by the fact that the endorsement does not state what the debt is. It is obvious that in order to find out what the amount due at the date of the acknowledgment was the decree -holders could not rely upon the endorsement alone because all that it said was that Rs. 5 had been paid towards the amount due upon the decree which did not throw any light upon the question as to what debt due from the judgment -debtors to the decree holders at the time of acknowledgment was. The decree -holders would not consequently want to take such an endorsement from the judgment -debtors if he wanted an acknowledgment for proving the debt. He obviously took the endorsement consequently not for the purpose of obtaining from thejudgment -debtors any evidence of the debt, but for the purpose of obtaining from them an acknowledgment of liability to save limitation.