RAMSWARUP PRASAD SINGH Vs. HARIHAR PRASAD SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal from a decision of the lower appellate Court holding that his execution petition is barred by time. A mortgage decree was obtained on 18 August 1935, and the execution petition was filed on 15 April 1940. The appellant's case was that on 15 May 1938, the mortgagor had paid him Rs. 79 towards the principal, interest and cost of the decree and made an endorsement to that effect on the appellant's copy of the decree. The appellant further contended that this payment saved his application from limitation under the provisions of Section 20, Limitation Act. The trial Court accepted this contention of the decree-holder, but the lower appellate Court, after referring in detail to the decision of their Lordships of the Judicial Committee in Rama Shah v. Lal Chand A.I.R. 1940 P.C. 63, came to the conclusion that the payment by the mortgagor to the mortgagee decree-holder, was an open payment and could not, in the absence of any evidence of appropriation towards the principal by the decree-holder, be taken to come within Section 20 and provide a starting point for a fresh period of limitation.

(2.) It has been urged on behalf of the appellant that the payment by the mortgagor, which is supported by the writing of the mortgagor and which has been accepted as a fact by both the lower Courts, was within Section 20, Limitation Act. As the learned Subordinate Judge puts it, it was held in Rama Shah V/s. Lal Chand A.I.R. 1940 P.C. 63 "that a payment on-general account is neither a payment of interest as such nor a part payment of principal." But Mr. De for the appellant has referred to Het Ram Bodh Raj V/s. Aya Ram Tola Ram 32 S.L.R. 415, a case in which there was a payment of Rs. 825 by the debtor, being the last payment on account of an instalment which carried interest. This payment, being necessarily a payment in respect of principal and interest, was held by their Lordships of the Judicial Committee to be a payment of interest (on a debt) as such by the person liable to pay the debt, the point being made clearer by a letter addressed by the judgment-debtor to the decree-holders in which he asked them for a formal receipt of the amount of the instalment together with interest. It does not seem to me that this case really helps the appellant. But Mr. De also cited Subraya Kamit V/s. Pakaya ( 02) 4 Bom. L.R. 231, which is much more in point. This was a case of an instalment bond on which the defendant debtor had endorsed a payment "of Rs. 4 out of the entire amount payable on account of principal and interest in respect of this bond." In making a reference under Section 617, Civil P.C., the Subordinate Judge referred to the Bombay decision in Hanmantmal Motichand V/s. Ramba Bai ( 78) 3 Bom. 198 that a general payment on account of a debt without any mention of principal and interest would not bring Section 20, Limitation Act, into play or interrupt the operation of limitation. He was himself inclined to think that a payment which left it doubtful what portion of it was to be applied towards interest would be no better than such general payment. Jenkis C.J. answered the reference by saying that there had been a payment of interest as such by the person liable, so as to attract the consequence for which provision is made in Section 20, Limitation Act." This decision was followed by the Calcutta High Court in Rai Mohan Shaha V/s. Lakshu Karika ( 10) 6 I.C. 16, not to mention a later Madras case. The difference between what is called a general or an open payment and a payment towards principal, interest and costs, such as we have in the present case, is no doubt rather tine, but lies in the fact that unlike the former the latter negatives the last of the four possibilities (regarding the intention of the debtor who makes the payment) pointed out by Sir George Rankin in Rama Shah V/s. Lal Chand A.I.R. 1940 P.C. 63, namely, the possibility (common enough in the former) that there was no intention of appropriation as between interest and principal. The mortgagor in the present case appears clearly to have contemplated payment not merely on account of principal with or without costs but also on account of interest, though he left the exact appropriation to the decree-holder. So far as interest is concerned, this case is therefore very much like the Bombay case dealt with by Jenkins C.J.; and if the decision of the present appeal had turned on this point alone, I should have been prepared to differ from the lower appellate Court and allow the appeal in the view that the payment did save limitation.

(3.) The appeal is opposed by one of the two parties in whose favour the mortgagor is said to have parted with all the mortgaged properties and to have done so before the payment of 15 May 1938, which was relied on to save limitation. The learned advocate who appears for this contesting party has endeavoured to meet the appellant's contention that the payment by the mortgagor was payment of interest as such by urging that the payment by the mortgagor, being made at a time when he had lost all his interest in the mortgaged property, is not within Section 20 which requires the payment of interest as such to be "by the person liable to pay the debt." If the mortgagor made the payment after he had parted with all his interest in the mortgaged properties, it has not been suggested by the decree-holder that the payment was made at a time when he could have enforced any personal liability against the mortgagor. The only course open to the decree-holders at the time of the payment by the mortgagor must therefore be taken to have been to execute the decree against the mortgaged properties, and this at a time when the mortgagor had no longer anything to do with them. The mortgagor, cannot, therefore, be said to have been liable in any sense to pay the debt, viz., the decretal amount, at the time of the payment, and the payment is not within Section 20. This contention of the contesting respondents is supported by the Full Bench decision in Pavayi v. Palanivela Goundan A.I.R. 1940 Mad. 470. The learned advocate who replied on behalf of the appellant endeavoured to meet this by citing Badri Das V/s. Pasupati Banarji A.I.R. 1933 Pat. 1 decided by a Division Bench of this Court; but it does not appear that there was anything said in that case which conflicts with the view taken in the Madras decision, for the mortgagor in the Patna case had only parted with one but not with the rest of the mortgaged properties. The learned advocate also endeavoured to assail the statement of the lower Courts that our mortgagor had parted with all the mortgaged properties before he made the payment of 15th May 1938, and even suggested a remand for the purpose of finding out whether or not some small portion of the mortgaged properties was still left to him. Now, it is true, as the learned advocate pointed out, that there was no express issue framed in the trial Court on this point. At the same time, the contesting respondents who objected to the execution under Section 47 expressly stated in para. 8 of their petition that the mortgagor had parted with all the mortgaged properties before the payment to the decree-holder. This statement of the contesting respondents does not seem at any time to have been contradicted by the decree holder at all. On the contrary, arguments appear to have been addressed to both the lower Courts on the footing that the mortgagor had in fact parted with the mortgaged properties, and both the Courts accepted the decree-holder's contention that though the mortgagor had already parted with all the mortgaged properties, it was still not unlikely that he would make the payment to the decree-holder in the hope of getting back some of the properties from his creditors. In the circumstances, the decree-holder appellant is not entitled to have an express inquiry now made on the point whether any of the mortgaged properties are still left to the mortgagor. The case must, it seems to me, be dealt with on the footing that such is not the case, and on this footing it is dear that the payment by the mortgagor, though it was a payment of interest as Such, was not made by a "person liable to pay the debt" and therefore cannot save limitation. The execution is, therefore, barred by time.