LACHMESHWAR PRASAD LALL Vs. KRISHNA PRASAD

JUDGEMENT

(1.) Defendant No. 2, who is a judgment-debtor, is the appellant. A suit for recovery of money based on two promissory notes dated the 23rd August, 1949 and 11th February, 1953, executed by defendant No. 1 who is the father of defendant No. 2 was instituted on the 13th July, 1955. Among the pleas raised in defence, one was that the suit was barred by limitation. The plaintiff depended upon an acknowledgment made by the executant of the handnote for saving limitation. The first handnote dated the 23rd August, 1949 was for Rs. 6900. On that Rs. 2500 was paid by defendant No. 1, the executant of the hand-note on the 26th September, 1951 and he had made an endorsement to that effect on the body of the promissory note. There was another payment in respect of the same hand-note on the 6th October, 1954. It was Rs. 200 and an endorsement to that effect was made by defendant no 1, the executant. It was contended by the defendants that the suit based on that hand-note was barred by limitation inasmuch as payment or an acknowledgment on the 6th October, 1954 (marked as Ext. 6A) did not save the limitation because it was made after the expiry of the prescribed period of limitation for bringing a suit baaed on that note. The courts below did not accept this contention and decreed the plaintiff's suit. Defendant No. 2 carried the matter in appeal to the first appellate court but without success. Hence, this second appeal.

(2.) Learned Counsel, appearing for the appellant, very strenuously contended that the view taken by the courts below in regard to payment or an acknowledgment dated the 6th October, 1954 (Ext. 6A) is not tenable in law, because by the time that endorsement and payment was made, the prescribed period of limitation in regard to the suit based upon the hand-note (Ext. 5) dated the 23rd August, 1949, had already expired. As I have stated above, the view taken by the courts below in this respect was that if the acknowledgment of liability is made during a period before the date when the suit in that respect could have been filed, taking into account the provisions of Section 4 of the Limitation Act, that would save limitation and a fresh period of limitation will be computed from such date of payment or acknowledgment and endorsement. I am clearly of the view that the courts below were wrong in their interpretation of sections 19 and 20 of the old Limitation Act. Section 19(1) states:

(3.) Coming to sections 19 and 20 of the Act and interpreting the words "period prescribed" and "prescribed period", the words shall be taken to mean the period mentioned in the schedule of the Act. In that view of the matter, if an acknowledgment is made beyond such prescribed period as given in the schedule or if any payment is made beyond, such period that would not attract a fresh period of limitation, as contemplated in those two sections. This view gains support from the decision in Bai Hemkore v. Masamalli, (1902) ILR 26 Bom 782, where a distinction between the right to sue and the prescribed period of limitation for a suit was brought out very clearly and it was held that an acknowledgment beyond the period of three years, which is the prescribed period in the schedule, did not save the limitation. This view also was followed in Debendra Nath v. Kartic Prasad, AIR 1929 Cal 68, and in Laxman Krishnaji v. Yadao Raghoba, AIR 1940 Nag 401. There are some other cases also to the same effect which were cited by learned counsel, but it is not necessary to add to the number of cases for the same purposes. In Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85, it was laid down by their Lordships that Section 4 of the Limitation Act did not prescribe the period of limitation, us stated in the schedule of the Act. Therefore, it has to be concluded that Ext. 6A in the present case, that is the payment and endorsement made by the executant of the hand-note, defendant No. 1, on the 6th October, 1954, did not entitle the plaintiff to compute a fresh period of limitation from that day, as, before that date, the prescribed period of limitation read with Section 19 and 20 of the Limitation Act (in respect of payment and endorsement made on the hand-note on the 26th September. 1951) had already expired.