AMAR SINGH Vs. MTRAM DEI

JUDGEMENT

(1.) In this case, on the 10 of April 1920, the decree-holder obtained a final decree for Rs. 2,338 on a mortgage. On the 6 of April 1923, the decree-holder is said to have received Rs. 50 from the judgment-debtor towards satisfaction of the decree. On the 3 of July 1923, the decree-holder applied under Order 21, Rule 2, certifying the payment of Rs. 50, and this was duly recorded by the Court. On the 19 of September, 1923, the decree-holder applied for execution. Without issuing notice to the judgment debtor the first Court summarily rejected the application as barred by limitation. It will be seen that the date of the alleged payment of Rs. 50 was a few days within the period of limitation, whereas the certificate was some three months after the period of three years from the date of the decree had expired. The first Court then held that the application for execution was barred by limitation in that payment was certified under Order 21, Rule 2, after the period of three years from the date of the decree, and that the "certification cannot revive the decree." The lower appellate Court, relying upon the case reported in Bhajan Lal V/s. Chede Lal (1914) 12 A.L.J. 825 dismissed the appeal.

(2.) The question for final decision in the case will be whether the application for execution was barred by limitation and the preliminary questions that we have to decide may be stated as follows: (1) Assuming that a payment has been made within three years of the last starting point of limitation for the execution application (in this case the date of the final decree) must that payment, in order to avoid exclusion from recognition by the terms of Order 21, Rule 2(3), be certified under Rule 2 within any particular period of limitation? (2) If the answer is in the affirmative, (a) does the period of limitation for the certification commence from the last starting point for the execution application or from the date of the payment? and (b) was the certification within the period? (3) If the certification was not barred by any rule of limitation, does the certification make - the payment entitled to recognition as a payment made on the date on which it was actually made or as a payment made on the date when it was certified? We have endeavoured to state these questions in unmistakable terms because it appears to us that the ruling of this Court by which the lower appellate Court has considered itself bound has boon misunderstood not only by that Court, but that that case and others of this Court, to which we shall refer have been misappreciated in several subsequent cases of other High Courts. It is necessary to be clear that there are two distinct aspects of the law of limitation to be distinguished namely, the law of limitation, if any, applicable to the certification of a payment and the law of limitation applicable to an application for execution. We shall have at present to discuss only the law of limitation, if any, applicable to certification. If we find that there is no impediment in the way of certification, the materials before us are not complete for a decision as to whether the application for execution is within the period of limitation applicable to applications for execution. The case will for that purpose, should the necessity arise, have to be remanded for findings as to whether a payment was in fact made; if so, on what date, and was the payment, if made, such as to constitute within the meaning of Section 20 of the Limitation Act a fresh starting point for limitation so as to make the present application for execution within time. At present the only finding by the lower Courts has been that the certification could not be made.

(3.) We have been referred to several cases of this Court : Gokal Chand V/s. Bhika (1914) 12 A.L.J. 387 Bhajan Lal V. Chede Lal (1914) 12 A.L.J. 825; chattar Singh V/s. Amir Singh (1916) 38 All. 204 and Baij Nath V/s. Panna Lal A.I.R. 1924 All. 706. We do not consider that any of these cases are material to the point that we have to decide. The certification set up, and the validity of which is questioned, may be prior to, contemporaneous with and part of, or subsequent to the application for execution. In the case before us it was prior; in the cases to which we have just referred it was contemporaneous; and in Shaft Mahomed V/s. Choitram (1919) 13 S.L.R. 37 it was subsequent. It is clear that there is a difference between the practice in this Court and that of some other Courts, including that of Calcutta, in the matter of whether an application under Order 21, Rule 2(1), must be made by a separate and prior proceeding to an application for execution, or whether it can form part of and be contemporaneous with the application for execution and whether the manner of making it must be in any particular form. We are not concerned here with this difference in practice. It is clear, that in the present case application under Order 21, Rule 2(1), was made by a distinct and prior proceeding. All that was held in the oases of this Court, to which we have referred, was that because there was no prior and separate proceeding, there was in fact no certificate such as is required. The question, therefore, of limitation did not really arise at all. On the other hand, we have, on behalf of the appellant also, been referred to Jatindra Kumar Das V/s. Gagan Chandra Pal (1919) 46 Cal. 22, Pandurang Balkrishna V/s. Jagya Bhau A.I.R. 1921 Bom. 411 and Masilamani Mudaliar V/s. Sethuswami Aiyar (1918) 41 Mad. 251. The case at Masilamani Mudaliar V/s. Sethuswami Aiyar (1918) 41 Mad. 251 has no bearing on the question before us. The Court decided merely that a contemporaneous certifying was a good certification within Order 21, Rule 2(1), and remanded the case for a finding as to whether a payment had in fact been made; and if so, whether it operated to save limitation. The finding on remand was that no payment had been made, and that concluded the matter. Very similar was the case at Pandurang Balkrishna v. Jagya Bhau A.I.R. 1921 Bom. 411.