GOVINDASAMI PILLAI Vs. DASAI GOUNDAN

JUDGEMENT

(1.) The assignee-decree-holder is the appellant. The following are the relevant facts and dates: On 20 September 1912 the final decree for sale of the hypothecated properties was passed. Items 4 and 5 of the hypothecated properties were afterwards acquired by the Government under the Land Acquisition Act and Rs. 3,400 (compensation money) was deposited in Court for the Government on 11 August 1914 to the credit of the suit. The decree amount with interest on that date amounted to Rs. 3,926 according to the decree- holder. The decree-holder drew the compensation amount of Rs. 3,400 from the Court on 11th August 1914 and he filed the present execution application for sale of two other hypothecated items on 10 August 1917. The questions for consideration are (1) whether the execution petition is barred by limitation and (2) what was the balance due under the decree, whether it was Rs. 500 and odd with interest from 11 August 1914 as claimed by the decree holder or a lesser sum, and if so, what sum?

(2.) The Lower Court on 30 September 1913 held on the second point that only Rs. 103-7-8 was the sum due on 11 August 1914 under the decree. On the first point it held that because on 11 August 1914 the compensation amount, Rs. 3,400, was paid to the decree- holder on account of the decree by consent of the judgment-debtors, Section 20 of the Limitation Act gave a fresh starting point of limitation and hence the execution petition of 10th August 1917 was not barred by limitation. It accordingly directed execution to issue for the Rs. 103 and odd with interest. This Appeal by the decree-holder was based on the ground that really Rs. 500 and odd was due and not merely Rs. 103 and odd on 11 August 1914 under the decree. Having heard both sides and gone through the records I agree with the Lower Court in its conclusion that only Rs. 103 and odd was really due on the above date. So the Appeal fails and has to be dismissed with costs.

(3.) But there is a Memorandum of Objections filed by the first defendant (the judgment- debtor) and the contentions in that Memorandum are: 1. The learned Judge ought to have held that the payments made ex parte having reference to their nature and mode did not come within Section 20 of the Limitation Act and the execution petition was therefore barred. 2. The Courts below ought to have held that even otherwise the decree has been fully satisfied by payments made.