T K PERAMANAYAGAM PILLAI Vs. RAMAN CHETTIAR

JUDGEMENT

(1.) The judgment-debtor is the appellant. This Civil Miscellaneous Second Appeal arises out of an application filed by the decree-holder under Order 21, Rule 38, Civil Procedure Code, to execute the decree in O.S. No. 175 of 1916 (District Munsif's Court, Tinnevelly) by arrest of the appellant. The question for decision is whether the decree sought to be executed is barred by limitation.

(2.) The date of the decree is 11 December, 1917. The application for execution previous to the present application (Exhibit E) was made on the 12 April, 1922. That was in time when it was filed. The present application E.P. No. 257 of 1926 was made on the 21 April, 1926. Prima facie it is barred by limitaton as having been1 made more than three years from the date of the last application. But the respondent decree-holder contended that it was saved from the bar of limitation under Section 19 of the Limitation Act by an acknowledgment made by the judgment-debtor within three years from the date of the last execution application and that the present execution application has been filed within three years from the date of the acknowledgment; and that it is therefore within time. This plea was accepted by both the Lower Courts.

(3.) The facts relating to the acknowledgment are these. The judgment-debtor became an insolvent. He filed a schedule of assets and liabilities before the Official Receiver. This schedule is Ex. III. It is not disputed that this contains an acknowledgment of liability. The question is, when was this acknowledgment made. The date 30 March, 1923, appears on Ex. III, but this has been stroked out. If this is the date of the acknowledgment then the present application, dated 21 April, 1926, as having been made more than three years from that date, is clearly barred by limitation. We are not able to say why the date appearing on Ex. III was stroked out. The document does not show when it was actually filed before the Official Receiver as it does not bear the stamp of his office. It must have been filed before him either on the 31st July, 1923 or some time after that date. This is inferred from Ex. V, a petition made by the insolvent to the Official Receiver promising to file the list in a week. Ex. V is dated 31 July, 1923. The District Munsif held that the respondent has admitted the present decree debt either on the 31 July, 1923, or on some day after that date and that the present application is not barred as it has been made within three years from that date. This decision was upheld by the learned District Judge.