REBATI MOHUN DAS Vs. ALAUDDIN AHAMMED CHOWDHURY

JUDGEMENT

(1.) The facts of the case out of which this appeal arises are as follows : The present appellant obtained a decree against the respondents on the 15 of July 1916. Certain payments were made towards the satisfaction of the decree on the 29 of November 1916, 3 October 1917, and 22 December, 1918, and these payments were certified to the Court. It has been held that certification of payment to the Court is a step in aid of execution so as to save limitation under the provisions of Art. 182, Sub-clause (5) of the Limitation Act. Speaking for myself I feel considerable difficulty in holding that a certification of payment by a judgment-debtor is an application to the Court to take some step in aid of execution. Speaking for myself I should look upon it as merely a statement to the Court that something had been done and not an application to the Court to do something. However, so far as the present appeal is concerned it is not necessary to decide this point. It may be taken for the purpose of this appeal that certification of payment on the 22 December, 1918 was a step-in-aid of execution. The appellant then alleges that further payments were made on the 17 April 1919, and the 13 April 1922. These payments were not certified to the Court. On the 19th July 1922, he applied for execution of the decree.

(2.) Both the lower Courts have found that this application was time barred as it was not made within three years of the last steps in aid of the execution, namely, the certification of payment made on the 22 December, 1918.

(3.) The learned vakil who has appeared for the appellants would seem to argue that the uncertified payment made on the 17 April 1919, was within three years of the 22nd December 1918, the date of the last certified payment and that the. uncertified payment made on the 13 April 1922, was within three years of the uncertified payment of the 17 April 1919, and that the application for execution made on the 17 July 1922, was within three years of the uncertified payment of the 13 April 1922, and that this would save limitation. He would contend that each of these uncertified payments gave a fresh starting point to the limitation and in support of his contention he would rely upon the cases of Jatindra Kumar Das V/s. Gagan Chandra Pal [1919] 46 Cal. 22 and Eusuff Zeman Sarkar V/s. Sanchia Lal [1916] 43 Cal. 207. At most these decisions would support the proposition that if a payment be made although uncertified within three years of the last certified payment and that this payment was itself certified within three years of the date of payment it would save limitation. With great respect to the learned Judges I have considerable difficulty in accepting the correctness of this decision. Hoever, the principle laid down in those cases obviously does not apply to the present case, because admittedly the payment of the 17 April 1919, was not certified to the Court within three years of the date of payment and the payment of the 18 April 1922, was not made within three years of the date of the last certified payment. It is therefore clear that the judgment of the lower appellate Court is right and that the application for execution is barred by limitation.