MADHOLAL Vs. SHAMLAL

JUDGEMENT

(1.) In this application under Section 25, Provincial Small Cause Courts Act, it is urged that the decree of the Judge is not according to law inasmuch as it does not give the petitioner who is the plaintiff, relief against defendant 2 as well as against defendant 1. The hand-note was executed by defendants 1 and 2 and defendant 1 made a payment which saved limitation. The question was whether it saved limitation against defendant 2 as well as against defendant 1 who made it. The Judge held that the question of joint family did not come in at all and that defendants 1 and 2 borrowed the money in their individual capacity and accordingly payment made by defendant 1 did not save limitation in respect of defendant 2. Mr. Sarjoo Prasad relies upon the decision of this Court in Badri Das V/s. Pasupati Banarji AIR 1933 Pat 1 and also upon the decision in Achola Sundari v. Doman Sundari AIR 1926 Cal 150. Section 20(1), Limitation Act, 1908, provides that there shall be a fresh period of limitation where interest on a date is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt and Section 21(2) provides that nothing in Secs.19 and 23 renders one of several joint contractors chargeable by reason only of a written acknowledgment signed by any other of them.

(2.) Prima facie these provisions are a complete answer to the argument of the learned advocate. It is to be observed that the first provision makes it necessary that the interest should be paid by the person liable to pay the debt. Upon the obvious construction of the provision the expression "the person liable to pay the debt" is not the same thing as "a person liable to pay the debt," that is to say, where there is joint liability. Again Section 21(2) has been inserted to make this perfectly clear in a case like the present where there are joint contractors. I do not feel pressed by the decisions which have been cited. Each of them relates to a liability on a mortgage to which obviously different considerations apply from those which are applicable in respect of joint executants on a hand-note.

(3.) In my opinion the decision impugned is correct and this rule must be discharged with costs; pleader's fee one gold mohur.