AMAR KRISHNA CHAUDHURY Vs. JAGAT BANDHU BISWAS

JUDGEMENT

(1.) In this case a decree-holder's application presented on 14 May 1929 for execution of a decree dated 30 January 1922 has been dismissed on the ground of limitation. In June 1925 a previous petition for execution was presented and was dismissed on 12 September 1925. Prima facie therefore execution was barred after 12 September 1928, but the lower appellate Court has held that on 18 July 1928 the judgment-debtor paid Rs. 25 on account of the decree, but that no acknowledgment of the payment appears in the handwriting of or in any writing signed by the judgment-debtor so as to render applicable Section 20, Limitation Act.

(2.) The finding is that the money was sent by the hand of a third person together with a letter which purported to come from the judgment-debtor, but was not in his handwriting or signed by him. In his judgment the learned Subordinate Judge says: After making the payment through a third person without his own writing or signature and after duping the unsuspecting amlas of the decree-holder he hastened to take a copy of the register as soon as the ordinary period of limitation was over.

(3.) The first point made by the decree-holder on this appeal is that on this view the Subordinate Judge should have applied Section 115, Evidence Act, and held that the judgment-debtor was estopped from denying that the letter was in his handwriting or signed by him. In applying this principle so as to get rid of a requirement of the Limitation Act it is very necessary to proceed carefully. I cannot find that any such case was made at the time when evidence was given or in the grounds of appeal to the lower appellate Court or that the particular amla or amlas concerned were called to say that they thought the writing was that of the judgment-debtor and that but for this belief he or they would not have accepted the money or would have applied for execution earlier in respect of the balance. The learned Subordinate Judge says: I am inclined to believe that the decree-holder's men did not suspect that the letter was not signed by the judgment-debtor or written at his instance.