CHAMPALAL LAKHICHAND Vs. RUPCHAND SUPADU PATIL

JUDGEMENT

(1.) THIS is a second appeal by the decree-holder against the appellate order dated July 29, 1962, made by the District Judge, Jalgaon, in Civil Appeal No. 145 of 1962, whereby the learned Judge allowed the 1st respondent-judgment-debtor's appeal against the order dated April 12, 1952, passed by the trial Court and dismissed the decree-holder's darkhast application for execution. He ordered the parties to bear their own costs throughout.

(2.) ONE Lakhichand Chhaganlal, being the father of the appellant-decree-holder obtained a decree for Rs. 2,437-8-0 with interest on Rs. 2,250 and costs amounting to Rs. 346-15-0 in Regular Civil Suit No. 38 of 1954 against the judgment-debtor whose legal representatives are now the respondents in this appeal. The decree was made payable by annual installments of Rs. 1,000 each payable on January 15, 1956 and 15th January of each subsequent year. The installments due on January 15, 1956 and January 15, 1957, were paid off. The balance of the decretal amount became payable on January 15, 1958. On November 18, 1958, the judgment-debtor deposited Rs. 250 in Court for payment to the decree-holder. Notice dated December 8, 1958, under O. 21, R. 1 of the Code of Civil Procedure was issued and served on the decree-holder. The sum of Rs. 250 was withdrawn by th e decree-holder on December 26, 1958. On December 18, 1961, the appellant as decree-holder instituted Darkhast No. 226 of 1961 for execution of the decree to recover the balance remaining due under the decree. Now, this darkhast was admittedly filed more than 3 years after the notice dated December 8, 1958, was served on the appellant. It was, however, within 3 years from December 26, 1958, when the appellant had withdrawn the sum of Rs. 250. On behalf of the respondents, it was contended that the darkhast being beyond 3 years from January 15, 1958, when the whole of the decretal balance had become due and in any event beyond 3 years from November 18, 1958, when Rs. 250 were deposited in Court, was barred under Article 182 in the first Schedule to the Limitation Act. In reply, on behalf of the appellant, it was contended that the executing court had paid the sum of Rs. 250 as agent of the judgment-debtors to the appellant on December 26, 1958. The payment was made by the Court on behalf of the judgment-debtors. The Court as agent of the judgment-debtors had acknowledged the payment under its own signature in the proceedings of the notice issued under Order 21, Rule 1 of the Code. The acknowledgment extended the period of limitation of 3 years and that period commenced from December 26, 1958. That was the result of Section 20 of the Limitation Act. The trial Court accepted that contention and by the order dated April 12, 1962, gave directions for issue of process in the darkhast application. The District Judge in Civil Appeal No. 145 of 1962 reversed the findings of the trial Court. The District Judge held that even if the executing court was held to be constituted an agent for payment of Rs. 250 to the appellant, the period of 3 years began to run from December 8, 1958, being the date of notice issued under O. 21. In that connection, the learned Judge observed that after the notice was served interest would cease to run in favour of the appellant. That showed that after the date of the service of the notice the period of limitation could never be held to be extended under Section 20 of the Limitation Act.

(3.) MR. Vaidya for the appellant has strongly relied upon the observations of Sadasiva Ayyar J. , in the case of Govidasami Pillai v. Dasai Goundan, ILR 44 Mad 971= (AIR 1921 Mad 704) and contended that as held in that case, the Judge of the executing court should be deemed to have been an agent duly authorised by the judgment-debtor to make the payment and that the signature of the Judge on the paper showing the payment satisfied the condition that the fact of payment should appear in the handwriting of the person making it, as required by S. 20 of the Limitation Act and that consequently the application for execution was not barred.