KUNJ BIHARI LAL Vs. BADRI NARAIN

JUDGEMENT

(1.) The only question in this appeal is whether the respondent s application for a decree absolute for the sale of mortgaged property was made within time. The decree nisi, which was passed in 1899 upon a compromise between the parties, provided that Rs. 1,374-0-0 with interest at a certain rate should be paid by instalments of Rs. 100 a year along with the interest then due. Payments were to be made by the end of Jeth in each year beginning with Jeth 1957 Fasli (June 1900), and it was provided that if default were made for three years in succession in the payments and interest, the decree-holder would be at liberty to recover at once the whole amount payable under the decree, i.e., to apply for an order absolute for sale of the property and execute the same.

(2.) No payment was made in 1900 or in 1901, but in June 1902, just before the end of Jeth 1959 Fasli, the appellant paid up all that was due on account of the first three years. He made no payment in 1903, but in June 1904 he paid up all that was due up to the end of Jeth 1960 Fasli (June 1903). No payment was made in 1905, but in June 1906 he paid the instalment and interest which he ought to have paid in Jeth 1961 Fasli (June 1904). It has been found that this payment is covered by the proviso to Section 20(1) of the Limitation Act. The only other payment made was a small sum on account of interest in July 1909 which has no bearing upon the question which we have to decide.

(3.) The appellant contends that the payment made in June 1906 not having been certified cannot be recognized by the court in view of the provisions of Order XXI, Rule 2. To this the respondent replies that rule is not applicable, inasmuch as the application for a decree absolute is not an application for execution and the court is not being asked to execute a decree but only to continue the suit. The payment in question was made before the passing of the new Code of Civil Procedure. Under the old Code it was, no doubt, held by this Court that an application for an order absolute was a proceeding in execution of a decree-see Oudh Behari Lal v. Nageshar Lal (1890) I.L.R., 13 All., 278--but it was held also in several cases that although an uncertified payment could not be recognized as a payment or adjustment of a decree by a court executing a decree, it was available to a decree- holder for the purpose of meeting a plea of limitation--see for example Kishan Singh v. Aman Singh (1894) I.L.R., 17 All., 42 and Roshan Singh v. Mata Din (1903) I.L.R., 26 All., 36. These ruU130045lings are binding upon us. The right which the respondent had before the passing of the new Code of Civil Procedure, to use the payment made in 1906 for this purpose, cannot have been taken away from him by the passing of the Code. We are therefore bound to recognize the payment when dealing with the question of limitation.