KUNJA BEHARI RAHA Vs. JOGENDRA CHANDRA DAS

JUDGEMENT

(1.) The question raised in this Rule is whether the decree of the Small Cause Court in this case was barred by limitation. The last application for execution of the decree was made more than three years previous to the present application and prima facie the present application is barred. The decree-holder, however, relied upon certain payments made by the judgment- debtor within three years of the application; but the fact of the payments did not appear in the handwriting of the judgment-debtor or of his agent duly authorized in that behalf, The decree was to bear no interest and the payments, therefore, in order to bring the case under Section 20 of the Limitation Act, ought to have been in the handwriting of the judgment-debtor. It is contended that the decree included interest and that, therefore, the payment of interest would bring the case under Section 20. But the original claim for interest became merged in the decree; and, as the decree did not bear any interest, any payment made by the judgment- debtor must be taken to have been made in part payment of the principal, in which case it must appear in the handwriting of the judgment-debtor or of his agent duly authorized in that behalf in order that a fresh period of limitation may run from the date of such payment under Section 20 of the Limitation Act. The same view was taken in the case of Harendra Chandra Bhattacharjee v. Cagan Chandra Das 35 Ind. Cas. 177. We are accordingly of opinion that the decree is not saved under Section 20 of the Limitation Act.

(2.) It appears, however, that the decree-holder produced certain letters in the Court below in order to show that there was an acknowledgment of liability on the part of the judgment- debtor before the expiry of the period of limitation. These letters have not been considered by the Court below, probably because of the view it took of Section 20 of the Limitation Act. We think that the decree-holders ought to be given an opportunity of showing that the letters contained acknowledgments of liability under Section 19 of the Indian Limitation Act.

(3.) The order of the Court below is set aside and the case sent back to that Court in order that the letters referred to above may be considered and the case disposed of according to law. It will be open to the parties to adduce evidence with reference to these letters. Costs will abide the result. We assess the hearing fee at one gold mohur.