JALIM CHAND Vs. YUSUFALI CHOUDHURI

JUDGEMENT

(1.) This appeal is by the decree-holder against an order of dismissal of his application for execution made by the Court below on the ground that it is barred by limitation. The decree was an instalment decree, the amount of which was made payable in six equal instalments distributed over the months of Kartick and Chaitra of 1325, 1326 and 1327. The first instalment was to begin on the 30 Kartick 1325, corresponding to the 15 November 1918, and it was agreed that on default of payment of any instalment the whole decretal amount would become immediately payable. The decree-holder alleged that the judgment-debtor paid the first kist partly on the 30 Kartick 1325 and partly on the 1 Pous 1325; the second kist partly on the 30 Chaitra 1325 and partly on the 30 Baisakh 1326; and the third kist partly on the 29 Kartick 1326 and partly on the 6 Pous 1326; corresponding to the 21st December 1919, which was the last payment made by the judgment-debtor. The present application for execution was filed on the 20 January 1922, stating that Rs. 664-5-9 had been paid out of Court by the judgment-debtor. In these circumstances the learned District Judge in the Court of Appeal below has held that the application was time barred. The ground which the learned Judge has given is that the payments made op the Kartick and Pous of 1325 were not certified within three years from the date of payment, and as such the Court cannot take cognisance of them. The payments could not be certified on the day the applications for execution was filed as being beyond three years from the date of payment, and, therefore, it must be held that the whole amount become payable on the 1 Agrahayan 1325, corresponding to 16 November 1918, that is, the first day after the first instalment became due. The learned Judge has further held that limitation was not saved under Section 20, Limitation Act, as admittedly no entry of payments was made by the person who had made them.

(2.) With regard to the first ground on which the Court below has held that the present application for execution was time barred, the view of the law that an application for certifying payments under Order 21, Rule 2, C.P.C., should be made within three years is supported by the decision in the case of Bali Md. Saha V/s. Aijanmai A.I.R. 1922 Cal. 30. There the learned Judge held that as there is no period of limitation fixed by the Limitation Act for an application by the decree-holder for certifying payments made by the judgment-debtor out of Court, the residuary Art. 181 should apply. This point, however, did not directly arise in that case, and their Lord-Ships were not called upon to decide it on the facts that were before them. In that case the final decree in the mortgage suit was passed on the 16 January 1916. On the 11th August 1919 the decree-holder applied for execution and alleged payment by the judgment- debtor on the 25 October 1917. The payment, therefore, was within three years before the application for execution was made and, therefore, it was not necessary to consider whether there was any period fixed by law within which the decree-holder should apply for certifying payments out of Court. Though the observations were clearly obiter dicta, coming from the learned Judges who decided that case, they are entitled to great deference, but I must respectfully decline to accede to the proposition. My reason is that Art. 81 applies to an application for which no period of limitation is provided in the Schedule to the Indian Limitation Act. Order 21, Rule 2 (1), provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part, the decree-bolder, shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. Under Clause (2) the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. The difference in the language of these two clauses is apparent. In Clause (1) the decree-holder is required only to certify such payment, whereas in Clause (2) the judgment-debtor is required to inform the Court of such payment and also to apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. The word " certify" as used in the two clauses above quoted is not defined in the Code, but has received judicial interpretation. It has been held in a number of cases of this Court, as well as in other Courts, that in order to certify payment it is enough that the decree-holder mentions the fact of such payment in the application for execution of the decree in respect of the balance. Eusuffzenan Sarkar v. Sanchia Lalmahata (1916) 43 Cal. 207; Lakhi Narayan Ganguli V/s. Felamani Dasi (1915) 20 C.L.J. 131; Pandurang Balkrishna V/s. Jagya Bhan A.I.R. 1921 Bom 411; Masilamani Mudaliar v. Sethni Swami Ayyar (1917) 41 Mad. 251. The same view has been adopted by the Patna High Court in the case of Sheikh Elahi Bux V/s. Nawab Lall (1919) 4 Pat. L.J. 159. If the view firmly established by these cases and others that followed them is correct, the word " certify," as used in Order 21, Rule 2 (1), becomes synonymous with the word " inform" as used in Clause (2) of that order. It is not, therefore, incumbent upon the decree-holder to certify payment by making an application, and if he is not required to make an application it is difficult to argue that Art. 181 applies. In the case of Bali Md. Saha V/s. Aijanmai A.I.R. 1922 Cal. 30 the learned Judges conceded the correctness of the law as stated above. But they proceeded to consider what period of limitation would be applicable to an application by the decree-holder to record payment. The use of the word " application " in connection with this matter might have misled the learned Judges. There is no case directly on the point in this Court as against the view adopted in the case of Bali Md. Saha V/s. Aijanmai A.I.R. 1922 Cal. 30, but the question came up before the Bombay High Court in the case of Pandurang Balkrishna V/s. Jagya Bhan A.I.R. 1921 Bom 411, where a similar objection was taken and overruled. In that case a decree was passed in 1906 making a certain quantity of paddy or its equivalent sum of money payable by instalments commencing in 1907. It was agreed that if two instalments were not paid the whole decree would be executed at once. The decree-holder filed an application for execution on the 10 September 1917 alleging that the first nine instalments from 1907 to 1915 had been paid to him regularly in January of each year, as they fell due, and as two instalments of 1916 and 1917 had not been paid he asked that the decree for the balance should be executed. The judgment-debtor denied having made any payment at all, and as none of the alleged nine instalments had been certified and recorded by the Court, he contended that the execution Court should not take cognisance of these payments and, therefore, the entire amount fell due on the date of the first default and the execution was barred by limitation. The learned Chief Justice considered the question of limitation and came to the conclusion that there was no time required for the decree-holder certifying payments already made under Order 21, Rule 2, C.P.C. The view taken in the case of Lakhi Narayan Ganguli V/s. Felanmani Dasi (1915) 20 C.L.J. 131 points to the same conclusion. There is no doubt that in that case payments were made within three years of the date of the filing of the application for execution, but the learned Judges observed that if there was no period fixed within which the decree-holder must certify, the decree-holder could certify part-payment at any time, and if the payment was within time, so as to prevent the decree being barred, the execution could not be said to have been barred.

(3.) There in one other case which deserves a passing notice. In the case of Bhau Bala Roy v. Jogesh Chandra Banerjee [1919] 23 C.W.N 320, an instalment decree was passed in 1910, the condition being that in default of payment of one instalment the entire amount was to become recoverable. The decree was put to execution in 1916 and the decree-holder, to avoid limitation, alleged uncertified payments. The learned Judges remark that it is not proved that any instalment had been paid. They further observe: " The appellant, the decree-holder, states he can certify the payments made at any time. That is quite true, subject, of course, to the ordinary rule of limitation that the certification must take place within such time as is required to save the case from being barred by limitation, He cannot postpone the certification for a long period of years and then say that he will save the decree from being barred by limitation by certifying the payments then. The point that is raised in this case really turns on whether the decree was saved from being barred by reason of these alleged uncertified payments. There is nothing to show that it was." The last sentence is ambiguous, but if it is read with the previous finding of fact, that it was not proved that any instalment had been paid, the conclusion is perfectly correct. It is also right to say that the certification cannot be postponed indefinitely; for it must be made within three years before execution is applied for to save the decree from limitation under Section 20, Indian Limitation Act, or on the ground of waiver. The decision is really in support of the view I take of the law. It is worthy of note that one of the Judges (Fletcher, J.), who decided this case, was a party to the decision in the case of Lakhi Narayan Ganguli V/s. Felamani (1915) 20 C.L.J. 131. To my mind Clause (3) of Order 21, Rule 22 presents no difficulty as certification of payments may be made by the decree- holder by stating them in his application for execution.