NAGESHAR MISIR Vs. MTBATUKA KUNWARI

JUDGEMENT

(1.) This application in civil revision arises out of a suit filed in the Small Cause Court, Ballia, on the basis of a "sarkhat." The "sairkhat" was executed by one Nand Kishore on 26 January 1909 foir a sum of Rs. 400. There is no mention, of interest payable by the debtor in the "sarkhat."

(2.) There are two endorsements upon the back of the "sarkhat" relating to payments to account made by the debtor. One endorsement is dated 17 April 1931. The payment, acknowledged by the debtor upon this date is for Rs. 51. There is no indication in the endorsement as to whether this payment is towards principal or towards interest. The second endorsement is dated 14 January 1932. The amount acknowledged as paid by the debtor is Rs. 128 : and in this case also there is no indication in the endorsement as to whether the payment is made towards principal or towards interest. In the year 1932, after the payment referred to in the second endorsement, Nand Kishore died. The present suit was filed upon 14 October 1933. The sum claimed by the plaintiff was Rs. 499-2-3. It was made up as follows:

(3.) The defendant pleaded that the "sarkhat" was not executed by Nand Kishore, and that in any case there was no consideration. Upon these issues the Court has found for the plaintiff, but has dismissed the suit on the ground that it is barred by limitation. The argument for the defendant was that under Section 20, Limitation Act, payments made by the debtor which have the effect of interrupting the running of the period of limitation must be payments by the debtor towards the redemption of the principal or towards interest "as such." It was contended, and this view found favour in the Court below that, inasmuch as there was no reference in the endorsement on the back of the "sarkhat" to interest, the payments made by Nand Kishore could not be regarded as payments of interest "as such" within the meaning of Section 20, Limitation Act. The plaintiff however admitted in evidence that he had appropriated the payments made by Nand Kishore to interest. It was argued therefore that the payment in effect, because of the action of appropriation on the part of the creditor, was a payment to wards interest; but inasmuch as there was no indication is the endorsement that the payment was made towards interest by the debtor, it was not a payment of interest "as such" within the meaning of Section 30, and therefore the period of limitation was not interrupted.