E CHATHUKUTTY Vs. ERAMAN

JUDGEMENT

(1.) The question in this case is whether the payment made by defendant 27 would save the decree from becoming barred by limitation against the other defendants.

(2.) The previous application for execution was made on 22 August, 1922. The present application was made on 3 September 1925. Obviously the application is barred by limitation. But reliance is placed on the payment of Rs. 50 made by defendant 27 towards costs in October 1922. The question is whether this payment would operate to save the application from becoming barred by limitation. At the outset I may mention that there was no application filed to certify this payment of Rs. 50 by the decree-holder. There is a decision of this Court which is on all fours with the present case: see Narayana Nair V/s. Kunhi Raman Nair . There it was held that mere payment is not a step-in-aid of execution and it is only the petition put in to certify such payment that can constitute a step-in-aid of execution such as will give a fresh starting point of limitation under Art. 182(5), Lim. Act. This reported case is precisely similar to the present case. I do not see any reason why I should not follow it. As pointed out in that decision there are two ways in which a decree-holder may get his application saved from the bar of limitation; he may prove a payment under Section 20, Lim. Act or he may show that a step-in-aid of execution before the expiry of three, years from the prior application has been taken by him. In the present case obviously Sec. 20, Lim. Act, cannot help the decree holder, because the payment made by defendant 27 Was not a payment on behalf of the others also.. The payment was a payment for himself. Then he can rely only on Art. 182(5). As I have pointed out no application has been filed to certify the payment. In fact there is no application before the Court in connection with this payment of Rs. 50.

(3.) Mr. Ramakrishna Aiyar relies on Masilamani Mudaliar v, Sethuswami Ayyar AIR 1918 Mad 620 and Rajam Ayyar V/s. Anantharatnam Aiyar (1915) 31 IC 318 to show that mere mention of the payment of Rs. 50 in the execution petition under consideration is enough without any request for certification of the payment to save the application from the bar of limitation. I have carefully read the two decisions. They are decisions not under Art. 182(5), but under Section 20, Lim. Act. They simply state that for the purpose of Section 20 mention of the past payment of the money in the execution petition, if the payment is proved, would amount to a certificate of payment even though the payment has not been actually certified. Those decisions therefore do not help the decree-holder in this case. For the above reasons I think that the lower Court's decision is wrong; it is set aside and that of the Subordinate Judge is restored with costs hero and in the Court below.