MAHESHWAR CHARAN Vs. DINESHWARI CHARAN

JUDGEMENT

(1.) This is an appeal from a decision of the Judicial Commissioner of Chota Nagpur and raises an interesting question of limitation. In plain language what happened was this. The decree-holder appellant who is represented by Mr. Sinha, obtained a decree on 10 September 1931 against the judgment debtor respondent represented by Mr. Baldeo Sahay in this Court. About 4 March 1932 a payment is alleged to have been made by the judgment-debtor respondent in part satisfaction of the decree: exactly what date is for the moment immaterial; but it is on the date mentioned that the decree-holder applied to the learned Judge to certify the payment, and 8 September 1984 was the date upon which the application for execution was made. It will be seen at once that unless the decree- holder can take advantage of the so-called application of 4 March 1932, his application for execution is hopelessly barred by limitation. It is necessary for the purpose of the case, and particularly for the purpose of the first point that has been argued to make lone further statement of fact. The payment by the judgment-debtor to the decree-holder was not made direct or in cash, but was made by an arrangement with a third party. Shortly stated it was this. The third party was a debtor of the judgment-debtor. The relationship of debtor and creditor also existed (between the third party and the decree-holder before this Court, and by an arrangement a set off was to be made between the third party and the decree-holder which was to enure to the benefit of the judgment-debtor. Now the document by which this arrangement was made is not before this Court, but it is agreed by the learned Advocates representing both the decree-holder and the judgment-debtor that there is no reference in that document to the judgment- debt, nor is it mentioned anywhere in that document that the payment was made in connection with the judgment-debt. But it does appear that the signature of the judgment-debtor before me is on that document. The matter can be best stated by saying that if a person reads the document knowing nothing of the facts of the case he will find nothing in the document to disclose the fact that any payment had been made by or on behalf of the judgment, debtor.

(2.) The learned Judge in the Court below had decided on the evidence that by this arrangement payment was made to the decree-holder on behalf of the judgment- debtor; but he has held that this does not assist the decree-holder and cannot be taken into consideration in determining the question of limitation. Mr. Sinha appearing for the decree-holder raises two questions: first, that the arrangement comes within Section 20, Limitation Act, and secondly, that the certification of the so-called payment was a step-in-aid of execution and time therefore began to run from 4 March 1932 and not from 10 September 1931, which was the date of the decree as I have already stated. So far as the first point is concerned I do not think there can be any kind of doubt. The matter is governed by the proviso to Section 20, Sub-section (1), Limitation Act. It will appear that the first part of the section deals with payment of interest on a debt or legacy or part payment of a principal of a debt before the prescribed period of limitation. Shortly stated any such payment so long as it complies with the section gives a fresh start for limitation, but the proviso states that an acknowledgment of the payment must be in the handwriting of or in the writing signed by the person making the payment. The proviso contemplates two facts: one, an acknowledgment in the handwriting of and signed by the debtor, or an acknowledgment in the handwriting of another person but signed by the debtor. As I have pointed out there is no acknowledgment, and indeed there is nothing in the document, which would in any way indicate that the judgment-debtor acknowledged the payment supposed to have been made on 4 March 1932; all that appears is his signature. To repeat myself there is no indication that any payment was made by or on behalf of the judgment-debtor. It cannot be said therefore in my judgment that there is an acknowledgment of payment in the handwriting or in a writing signed by the person making the payment. In my opinion therefore the first point fails.

(3.) The second question is whether the matter comes within Art. 182, namely whether the so-called application was an application in aid of execution. In the recent case of, Prakash Singh V/s. Allahabad Bank Ltd. 1929 PC 19 their Lordships of the Privy Council had to consider certain part payments in the light of Art. 181, Lim. Act, under a compromise decree. In that case the important point of fact was whether on a certain date (which was April 1922) there was a sum of Rs. 60,000 owing to the judgment-debtor and it was when such a sum was due that execution could be taken out by agreement between the parties. There it was argued on behalf of the judgment-debtor that certain part payments amounting to some lakhs of rupees could not be certified by the Court and therefore bad to be ignored as the certification had been mad6 out of time. If that argument had been acceded to, it would have shown that there was more than Rs. 60,000 due in April 1922, or in other words, that a debt of Rs. 60,000 which was a condition precedent -to execution being taken out, had existed a long time before and therefore the application for execution which was before the Court was barred.