JATINDRA KUMAR DAS Vs. GAGAN CHANDRA PAL

JUDGEMENT

(1.) THIS Rule is directed against an order by which the Court of Small Causes of Dacca has refused an application for execution of a certain decree on the ground that the decree is time- barred. The decree is dated the 9th May, 1913: The decree-holder, who is the petitioner before us, alleges that the judgment-debtor made a payment to him of Rs. 25 on the 10th June, 1914, and a farther payment of Rs. 50 on the 20th November, 1914. He also alleges two earlier payments, which for the purposes of this Rule we may disregard. On the 6th June, 1917, he then made an application to the Court for certifying the above payments. On the 9th June, 1917, he next applied for execution of his decree. Without taking evidence in the matter, the learned Subordinate Judge held that the payments of the 10th June, 1914, and 20th November, 1914, to which we have referred, taken with the decree-holder s application of the 6th June, 1917, were not sufficient to save limitation. We are unable to hold that on the facts before him he has come to a proper decision in this matter. We need only refer him to the cases Rakhal Das Mazumdar v. Jogendra Narain Mazumdar (1909) 10 C.L.J. 467, Lakhi Narain Ganguli v. Felamani Dasi (1914) 20 C.L.J. 131 and Khatibannessa Bibi v. Sanchia Lal Nahata (1915) 20 C.W.N. 272. From these cases it will appear that the payments of June and November, 1914, being within three years from the date of the decree, and the application of the 6th June, 1917, being again within three years from the date of those payments, it follows that if those payments were in fact made, the decree-holder will have a fresh starting point for limitation within the meaning of Article 182(5) of the first schedule of the Limitation Act.

(2.) UNDER these circumstances, we set aside the order made by the Court of Small Causes, and return the record to him in order that after the taking of evidence he may proceed to dispose of the application before, him in accordance with law.