PEARE MOHAN PRASAD Vs. RAGHUNATH LAL

JUDGEMENT

(1.) This is a decree-holder's second appeal against a judgment by which the execution application has been declared as time barred.

(2.) The facts briefly are these: The decree-holder obtained the decree in question on the 29 October 1919. The first application for execution was made on the 18 March 1922. The second application was made on the 12 October 1925, that is to say, more than three years after the date of the first application. On the face of it, the application would be time barred. The decree-holder however, alleged in the application for execution that between the 14 May 1923 and the 22 September, 1925, he received several payments towards interest, and his case is that these payments save limitation. The Court refused to execute the decree for want of a certificate of payment on behalf of the decree-holder. Thereupon, on the 14 October 1925, the decree-holder made an application certifying the payments the judgment-debtor appeared (it appears without any notice) and contended that the application for execution was time barred. As already stated, the Courts below have held that the application was time barred. In this Court the learned Counsel for the appellant, who has argued the case extremely well, has put forward before us two contentions in support of his appeal. His first contention is that the statement contained in the application for execution, that certain payments towards interest had been received prior to the execution application and on certain specified dates, would serve the purpose of certification, as contemplated by Order 21, Rule 2 (3). His second contention is that at any rate, his certificate of the 14 October 1925, that payments had been received, would be good enough for the purpose of removing the bar imposed by Order 21, Rule 2(3).

(3.) As regards the first point, the learned Counsel has frankly admitted that the trend of rulings in this Court is against him. He has quoted the rulings that are against him and these rulings are all mentioned in the latest ruling on the point, viz., Baijnath V/s. Panna Lal A.I.R. 1924 All 706. He has argued that the first case in this Court, viz., Gokul Chand V/s. Bhika [1914] 12 A.L.J. 387, does not go entirely against him inasmuch as Knox, J. mentioned it as an important matter, that the factum of payment was not mentioned in the proper column in the execution application. In the cases Chhattar Singh V/s. Amir Singh [1916] 38 All. 204 and Baij Nath V/s. Panna Lal A.I.R. 1924 All 706 the learned Counsel pointed out, the expressions "certified" and "recorded" have been mixed up by the addition of the word "and" in the judgments, while there is the word "or" in the Code itself-O. 21, Rule 2 (3). He has also pointed out that almost all other High Courts have held that a contemporaneous statement as to payment with the application for execution itself is good enough to satisfy the provision of Sub-rule 3, Rule 2, Order 21, Civil P.C. He had quoted for his authority the cases of Eusuffzeman Sarkar v. Sanchia Lal Nahata [1916] 43 Cal. 207, Pandurang Balkrishna V/s. Jagya Bhau A.I.R. 1921 Bom. 411, Masilamani Mudaliar V/s. Sethuswami Ayyar [1917] 41 Mad. 251 and Sheikh Elahi Bux V/s. Nawab Lall [1919] 4 Pat. L.J. 159.