BALEY MAHAMMAD SAHI Vs. AIJANMAI

JUDGEMENT

(1.) This is an appeal by the decree holders from an order of dismissal made on an application for execution of a mortgage-decree. The preliminary decree in the mortgage-suit was made on the 8 May l9l2. This was followed by the final decree on the 15 January 1916. On the 11th August 1919, the decree---holders applied for execution. This application was prima facie barred by limitation under Art. 182 of the Schedule to the Indians Limitation Act. Consequently, the decree-holders sought to escape from the bar of limitation by reference to a payment alleged to have been made by the judgment-debtors on the 25 October 1917, The Court of first instance held that the alleged payment, which had not been certified or recorded under Order XXI, Rule 2 of the Civil P. C., could not be recognised, and dismissed the application as barred by limitation. This decision of the primary Court has bean affirmed by the District Judge. We are of opinion that the view taken by the Courts below cannot be supported.

(2.) Order XXI, Rule 2 consists of three sub-rules. Sub Rule (1) deals with the case where the decree-bolder seeks to certify a payment made to him out of Court by the judgment-debtor. The sub-rule provides that where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it in to execute the decree and the Court shall record the same accordingly. Sub Rule (2) deals with the case where the judgment-debtor seeks to inform the Court of a payment alleged to have been made by him out of Court to the decree-debtor may inform the Court of such payment and apply to the Court to issue a notice to the decree-holder. In this event, the judgment-debtor may inform the Court of such payment and apply to the Court to issue a notice to the decree-holder to show cause on a day to be fixed by the Court why Bush payment or adjustment should not be recorded as certified; and if after service of such notice the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the sama accordingly. Sub-Rule (3) finally provides that a payment or adjustment which has not been certified or recorded as aforesaid, that is at the instance of either the decree holder or the judgment-debtor, shall not be recognised by any Court executing the decree Let it be conceded that sub-Rule (3) is expressed in wider terms than the corresponding provisions of the Code of 1882, which laid down that a payment or adjustment not certified should not be recognised as payment or adjustment of the decree. But this does not solve the problem raised before us. The question is, whether the decree- holder can certify the alleged payment in the manner attempted in his application for execution. In this connection it is important to observe that Art. 174 of the Limitation Act is applicable only to a case under sub Rule (2) of Rule 2. That Art. provides that an application for the issue of a notice under the Civil Procedure Code to show cause why any payment made oat of Court or any money payable under a decree or order should not be recorded as certified shall be made Within 90 days from the date when the payment or adjustment is made. This is clearly nut applicable to a case under sub Rule (1). We must conssquantly consider, whether there is a period of limitation for an application by a decree-holder who has received payment from the judgment-debtor out of Court, to record the payment. Plainly, the only Article applicable is Art. 181, which provides that an application for which period of limitation is provided elsewhere in this Schedule shall be made within three years from the time when the right to apply accrues. The right of the decree-holder to apply accrues as soon as he receives payment, because from that moment he is under an obligation to certify the payment to the Court whose duty it is to execute the decree.

(3.) In the case before up, the alleged payment was made on the 25 October 1917. Consequently it was open to the decree-holder to apply to the execution Court within three years from that date to record the payment. The Code does not prescribe that such application must be distinct from an application for execution of the decree and there is obviously no objection to a cambined application embodying a twofold prayer, namely, first, that the alleged payment be recorded, and secondly, that the decree be executed for the balance of the judgment-debt. This view has been adopted by this Court in the cases of Lakhi Narain Ganguli V. Felamani Dasi 27 Ind. Cas. 11 : 20 C. L. J. 131 : 18 C. W. N. cxcvi (l96), Eusuffzeman Sarkar V/s. Sanchia Lal Nahata 34 Ind. Cas. 606 : 43 C. 207 : 23 C. L. J. 390 : 20 C. W. N. 272, and Harendra Chandra Bhattacharjee V/s. Gagan Chandra Das 35 Ind. Cas. 177 : 22 C. W. N. 325, That the decree-holder is not bound by the rule of limitation applicable to the judgment-debtor has also been recognised in a series of decisions of this Court, namely, Lakhi Narain Ganguli V/s. Felamani Dasi 27 Ind. Cas. 11 : 20 C. L. J. 131 : 18 C. W. N. cxcvi (l96), Eusuffieman, Sarkar V/s. Sanchia Lal Nahata 34 Ind. Cas. 606 : 43 C. 207 : 23 C. L. J. 390 : 20 C. W. N. 272, Harendra Chandra Bhattacharjee V/s. Gagan Chandra Das 35 Ind. Cas. 177 : 22 C. W. N. 325, and Jotindra Kumar Dass V/s. Gagan Chandra Pal 45 Ind. Cas. 903 : 46 C. 22, A similar view has not been adopted by the Patna High Court in Sheik Elahi Bux V/s. Nawab Lall 50 Ind. Cas. 364 : 4 P. L. J. 159 : (1919) Pat. 260, by the Madras High Court in Masilamani Mudaliar V/s. Sethuswami Aiyar 41 Ind. Cas. 701 : 41 M. 251 : (1917) M. W. N. 502 : 33 M. L. J, 219 : 22 M. L. T. 115, and by the Bombay High Court in Pandurang Balkrishna V/s. Jagya Bhau 59 Ind, Cas. 399 : 45 B. 91 : 32 Bom. L. Rule 1120, Our attention has, however, been drawn to the decision of this Court where an apparently different conclusion was reached. The first of these cases, Bireswar Mookerjee V/s. Ambika Charan Bhattacharjee 42 Ind. Cas. 472 : 45 C. 630, need not detain us, because the ex parte judgment in that case was re-called on an application for a rehearing by the opposite party in the Rule upon whom no notice has been served and the case was subsequently decided on another ground. But we may point out that the facts of that case were of a very special character and even on the view which we take the result would not have been different, in that case, the decree was made on the 24th November 1909. The application for execution was presented on the 7 June 1916, and was prima facie barred by limitation. To escape from the bar of limitation the decree-holder relied upon two payments alleged to have been made by the judgment-debtor on the 8 October 1912, and 9 June 1913. In respect of the first payment dated the 8 October 1912, the prayer to have it recorded (as contained in the application for execution dated the 7 June 1916) was barred by limitation under Art. 181. In respect of the second payment, dated 9th June 1913, the application was not go barred, but that payment, even if recorded, would clearly be of no avail by itself to save from the bar of limitation a decree dated 24 November 1909. The second case brought to our notice is Bahuballav Roy V/s. Jogesh Chandra Banerjee 50 Ind. Cas. 242 : 23 C. W. N, 820, where it was ruled that the decree holder can certify payment nude at any time, subject to the ordinary rule of limitation that the certification must take place within such time as is required to save the application from being barred by limitation. It may be doubtful whether the application mentioned is the application for execution, or the application to have the payment recorded; the latter interpretation would be in harmony with the provision in Art. 181, which prescribes the only restriction upon the rights of the decree-holder to bring the payment to the notice of the Court. In these circumstances we must hold that the balance of judicial opinion is in favour of the view that the present application for execution is not barred by limitation.