JANAKI AMMAL Vs. SRINIVASAN

JUDGEMENT

(1.) The appellant was the petitioner who filed E.P. No. 787 of 1927 in O.S. No. 267 of 1918 on the file of the District Munsif's Court, Kumbakonam, for the execution of the mortgage-decree by the sale of the mortgaged property. This petition was presented on 16 November, 1927. In order to show that it was not barred by limitation, a payment of Rs. 50 on 20 November, 1924, by the 2nd defendant's guardian towards the subsequent interest of the said decree and costs was set up in the petition. The 2nd defendant simply denied the fact of payment. In the inquiry held by the District Munsif, he found the alleged payment to be true and held that the execution petition was not barred. " On appeal, the learned Subordinate Judge without expressly stating that he disbelieved the fact of payment, came to the conclusion, that it was not proved that the payment was made towards interest. In this view, he dismissed the petition as barred by time.

(2.) The question is whether the inference drawn by the lower appellate Court is the proper legal inference in this case. In order to make the payment valid for the purpose of Section 20 of the Limitation Act, it must be shown that the payment was either wholly or partly on account of interest. Debt referred to in this section includes money payable under a decree. It has been observed in several decisions that a question of this kind has to be determined on the facts of each case. What would be a fair presumption in one case may not be so in another case, if the facts and circumstances of both the cases are not exactly similar. In the present case, the fact of the payment of Rs. 50 on the date fixed for sale is proved by the petitioner and her second witness, who is an attestor of the receipt alleged to have been passed for that payment. On the other side, there is a mere denial of this payment by 2nd defendant's guardian whose evidence has been rightly discredited by the trial Court. I have no doubt as to the truth of the alleged payment. But can it be reasonably inferred that this was on account of interest also ? The petitioner states in her evidence that the sum of Rs. 50 was received for the decree amount. On that day, the decree amount consisted of a sum of Rs. 385-0-8 and subsequent interest on Rs. 288-12-4 from 27--8--1918 at 6 per cent, per annum. The execution costs as noted in the execution petition in question amounted to Rs. 22- 13-0. It is thus clear that when the sum of Rs. 50 was paid for the decree amount what was due for costs as such (which did not carry interest) was only Rs. 22-13- 0. The decree amount comprised both principal and interest, and the amount due for interest alone was much more than Rs. 50. Do not these facts give rise to a fair presumption, that a portion of this sum of Rs. 50 must have been paid towards interest ? It must be stated that there is no statement by the 2nd defendant that the amount was earmarked for principal by any representation to the decree- holder. On the other hand, the fact of payment itself is denied. On almost similar facts and circumstances, an inference in favour of the payment having been for interest also, was drawn by Jackson, J. in the case in Subbayya V/s. Gangayya (1925) 22 L.W. 827 distinguishing the decision in Muhammad Abdulla Khan v. Bank Instalment Company, Limited, in Liquidation (1909) I.L.R. 31 All. 495 and by a Bench of this High Court in Askaram Sowkar V/s. Venkataswami Naidu (1920) I.L.R. 44 Mad. 544 : 40 M.L.J. 218. On the same lines the question was viewed and inference drawn in two other cases by the Allahabad High Court, Gopi Nath Singh V/s. Hardeo Singh (1909) I.L.R. 31 All. 285 and Bandhu Singh V/s. Kayastha Corporation, Gorakpur . I am, therefore, of opinion, that in the present case, it can be fairly inferred that a portion at least of the sum of Rs. 50 was paid on account of interest due under the decree, in which case the execution petition is not barred by limitation.

(3.) In the result, the order of the lower appellate Court is set aside, and the execution petition is remanded to the District Munsif's Court, Kurabakonam, for restoration to its file and disposal according to law. The 2nd respondent should pay the appellant's costs in this Court. Parties will bear their own costs in the lower appellate Court.