HEM CHANDRA BISWAS Vs. PURNA CHANDRA MOOKERJEE

JUDGEMENT

(1.) THIS is an appeal by the first defendant from the judgment of the learned District Judge of Bardwan, dated the 30th January 1915. The suit was brought to enforce a mortgage security and the only question that has been raised in this appeal is one of limitation. The mortgage was dated the 3rd July 1895 and the present suit was instituted on the 20th June 1913. Both the lower Courts have found that three payments were made, namely, Rs. 10 on the 18th August 1900, Rs. 80 on the 25th October 1900 and Rs. 10 on the 3rd February 1903. It is common ground that the plaintiff must succeed, if at all, on proving the payment of 3rd February 1903, which would save the suit from being barred by limitation. The view that has been taken by the learned District Judge is this: First of all, lie says: Was this payment of the 3rd February 1903 a payment on account of interest as such within the meaning of Section 20 of the Indian Limitation Act?" The learned Judge apparently came to the conclusion that, the payment not having been expressly made as such, the evidence did not establish that it was made on account of interest as such. He then said that the case did not end there, because admittedly there was a payment and there was also a document (from which the fact of the payment appeared) in the handwriting of the person making the same. The learned Judge said "if I am wrong in the conclusion that 1 have arrived at as to the payment being a payment of interest as such then the payment being proved and there being admittedly a document in the handwriting of the defendant from which the fact of the payment appears, the payment must be taken to be a payment on account of principal." That view, I think, is right. In none of the cases, where a different view has been taken, was there a document in writing to satisfy the second part of Section 20 of the Limitation Act. In this case, there is a distinct finding by both the Courts below as regards the payment. If the Judge was right that the evidence did not establish that the payment was made on account of interest as such, still there was evidence establishing the payment plus the document in writing proving the fact of payment. On that evidence, the learned Judge was entitled to come to the conclusion that the payment was a part-payment on account of principal. As a matter of fact, although not expressed in happy language, the learned Judge has found that this payment was on account of principal, because he uses these words:--"The payment of Rs. 10 made on the 20th Magh 1309-B. S. being in the handwriting of the debtor will be considered as payment- towards the principal," When the first Court of Appeal in fact says that the payment will be considered that way, it must be considered that way and considered so for all purposes. It seems to me that the learned Judge, on the materials before him, was entitled to come to the conclusion as he did that this payment was a payment towards the principal coming within the meaning of Section 20 of the Indian Limitation Act. The present appeal, therefore, fails and must be dismissed with costs.