GANJHOO DEO MOHAN SINGH Vs. HARI SAHU

JUDGEMENT

(1.) This is an appeal by a decree-holder from an order of the Subordinate Judge of Banchi, upholding the judgment-debtor's objection that the application for execution made by the former was barred by time and accordingly dismissing that application.

(2.) The applicant obtained a money decree for Rs. 7056 odd against the objector respondent's father on 26 June 1936. He applied for execution of this decree on 21 May 1940, and his contention was that this application was in time because on 15 December 1987, the original judgment-debtor had made a part payment of Rs. 1600. The lower Court has accepted the evidence given on behalf of the decree-holder in support of this payment, and has found that this payment exceeded the interest due up to that time, but that there was no proof by the decree-holder of how he had appropriated the payment, nor any acknowledgment of the payment in the handwriting of or in a writing signed by the person who had made it. The payment, therefore, did not give rise to a fresh period of limitation under Section 20, Limitation Act; and following the Full Bench decision in Amarkrishna V/s. Jagatbandhu , the learned Subordinate Judge held that the decree- holder's certification of the payment in his execution petition was not a step-in-aid of execution. The learned advocate for the appellant has drawn attention to Sonya Bisoi V/s. Ananda Padhano (38) 21 P.L.T. 650, which was also referred to below, but it does not seem that anything was said in that case which can help the appellant. What was decided in that case was that it was open to the decree-holder, even after an execution petition of 1934, to prove a payment made by some of the judgment-debtors in 1929, which was supported by a receipt written by them and which saved the decree-holder's previous execution petition of 1932 from the time bar.

(3.) This view was in accordance with the decision in Elahi Bux V/s. Nawab Lall A.I.R. 1919 Pat 136 the case of an installment decree with the usual provision for default. Execution was applied for in that case on 27 September 1917, on the footing that the judgment-debtor had only defaulted in paying the installment fixed for 11 April 1915. The judgment-debtor, however, denied paying an earlier instalment that was due on 11 April 1914, and contended that it was not open to the decree-holder to certify the alleged payment of 11 April 1914, more than three years afterwards as he had done by his execution petition itself. This contention was overruled on the ground that no period of limitation is prescribed for certification by the decree-holder, and the learned Judges held that it is open to the decree-holder to make the certificate at any time after the alleged payment. There is nothing in this decision or in the decision from Sonya Bisoi V/s. Ananda Padhano (38) 21 P.L.T. 650 in support of the contention that certification by the decree-holder is a step-in-aid of execution, or will by itself operate to save limitation. The learned advocate has cited Maung Law San V/s. Maung Po Thein A.I.R. 1925 Rang 26, in which a single-sitting Judge of the Rangoon High Court held upon certain Calcutta authorities that "an application to certify is a step-in-aid of execution" and that such an application may be made by the decree-holder under Art. 181, Limitation Act, at any time within three years from the dates of payments if made by the judgment-debtor in time, and will afford the decree- holder a fresh starting point for limitation within the meaning of Art. 182(5), Limitation Act. This view, however, was held by two learned Judges of the same High Court in Maung Tun Hlaing V/s. U. Aung Gyaw A.I.R. 1930 Rang. 64, to be "no longer good in the face of the recent decision of their Lordships of the Privy Council in Shri Prokash Singh V/s. Allahabad Bank Ltd. A.I.R. 129 P.C. 19.