GOBIND RAM Vs. FIRM CHUNI RAM JAMUNA DAS

JUDGEMENT

(1.) This appeal by the judgment-debtor raises two questions; first, whether the execution to which he objected was time-barred; and secondly, whether execution could lawfully be taken by arrest of the judgment-debtor. As to the second point, the argument has been based on Section 51, Civil P.C., as amended. The decree had been an instalment decree to be satisfied by 43 monthly instalments of Rs. 35 each. Twenty-one payments were made; thereafter there was default. It was argued that the Courts below had failed to apply Section 51 in its present form. I do not find any substance in this argument; for, there is a clear finding that the judgment-debtor has the means to pay and it is undisputed that since about June 1934 he has made no payments towards the decretal debt except a payment of Rs, 50 in 1937 with regard to which there is some contention. Under the proviso to Section 51, the Court can order execution by arrest and detention in prison if the judgment-debtor has had the means to pay up the decree or a substantial part thereof and has refused or neglected to pay. Therefore, there is no substance in the contention that the judgment-debtor ought not to be arrested provided that the execution can proceed at all.

(2.) This brings us to the other point whether the decree is time-barred. On the instalments fixed in the decree which was by consent, those falling due up to June 1934 were satisfied. The present execution was instituted on 6 December 1939, and the question is whether in the interval between these two dates there were any acknowledgments or any payment which can save limitation. The payment set up by the decree-holder is said to have been made on 9 January 1937, by money order sent by the judgment-debtor Gobind Ram. The amount was Rs. 50 and the figures "50" are said to be in the handwriting of this judgment-debtor. Exhibit A(io), on which these figures appear is the money order coupon. There is nothing on the coupon to show that it refers to this or any other particular debt, but one of the decree-holders in his evidence has said that the occasion of sending the Rs. 50 was that a few days before he had been to the judgment-debtor and threatened to take out execution and the judgment-debtor had promised to send Rs. 50 within 5 or 7 days and in pursuance of that promise he sent this amount. The question, however, is whether that will be enough or whether it is necessary that the connexion between the payment and this debt should appear on the face of the writing required by the proviso to Section 20, Limitation Act, The Subordinate Judge thought that the payment of Rs. 50 did not avail to save limitation, in the absence of a signature of the judgment-debtor. The District Judge held otherwise. The actual signature of the judgment-debtor is in my view not necessary provided that the acknowledgment required by Section 20 is in the handwriting of the person making the payment: but I think the acknowledgment must appear on its face to be on account of the debtor, at least on account of a debt, whereas in the money order coupon there is nothing at all to show on what account the remittance was made. It might on its face have been in respect of some new cash transaction. Therefore for a different reason I agree with the conclusion of the Subordinate Judge that the money order coupon dated 9th January 1937 is not sufficient to save limitation. The District Judge, I think, was in error in saying that limitation was saved by this payment of rupees 50.

(3.) The decree-holder also relied on two letters Exs. c(5) and c(10) as acknowledgments of liability and promises to pay contained in letters from the judgment-debtor. The Subordinate Judge thought that these letters were effective acknowledgments of liability, that it was not necessary that they should specify the exact amount and that they kept the decree alive so far as it referred to those instalments which were not barred by time on the date of the Ex. c(10), the earlier of the two letters. The District Judge took a different view and thought that Exs. c (5) and C(10) were of no avail on the question of limitation; but he dismissed the appeal because he had taken a different view from the Subordinate Judge with regard to the effect of the money order coupon. In my view the Subordinate Judge was right with regard to Exs. c(5) and c(10). They are; clearly acknowledgments of debt coupled with promises to pay it. There is no suggestion that the debt referred to can have been any other debt than this instalment decretal debt. In my view these acknowledgments save limitation as held by the Subordinate Judge to the extent of those instalments pay. able under the decree which were not time- barred on the date of EX. c(10). In the re-suit the appeal will be dismissed with costs. Leave to appeal under the Letters Patent is refused.