GAHAR ALI HOULADAR Vs. ABDUL OWAHAB SIKDAR

JUDGEMENT

(1.) The plaintiff and the defendant were cosharers in a certain taluk. The landlords of the taluk obtained a decree for rent and when the property was advertised for sale the plaintiff deposited the entire decretal amount in Court which was accepted by the Court and the landlords decree was recorded as satisfied. The deposit was made by the plaintiff in Court on 4 February 1920, but the money was actually withdrawn by the decree-holders on 14th February 1920. The present suit for contribution by the plaintiff against his cosharer, the defendant, was instituted on 15 February 1923, the 14 February being a holiday. The question that arises in this case is whether the suit is in time. The Courts below have differed on this point, the lower appellate Court being of opinion that the period from which limitation should be reckoned is the date on which the decree-holder withdrew the amount, namely the 14 February 1920. In this view it held that the plaintiff's suit was not barred by limitation. The Munsiff, on the other hand, was of opinion that time ought to be calculated from 4th February 1920, the date on which the money was deposited by the plaintiff. In this view he held that the suit was barred by limitation and dismissed it. The question involved does not appear to have ever come directly up for consideration in any Court in India so far as the reported authorities go. The simple question that we are called upon to decide is as to from what date in the circumstances of this case the period of limitation should be counted as prescribed by Art. 99, Lim. Act. Column 3 of that article says that the time should be computed from the date of the payment in excess of the plaintiff's own share. There are a few other articles is the Limitation Act in which time runs from the date of payment, for example, Articles 61, 81, 82 and 107. In all these articles the terminus a quo is laid down as the date of the payment. Column 1 of Art. 99 says that a suit for contribution by a party who has paid the whole or more than his share of the amount due under the joint decree, etc., etc. Neither does column 1 nor column 3 say clearly about payment to any particular person. The word "payment" in Column 3 should be read as conveying the same sense as the words "has paid" in column 1. The appellant argues that the payment is complete as soon as the amount is put into the Court to the credit of the decree-holder. The respondent, on the other hand, contends that there was no payment before the decree-holder drew out the amount from Court. Both of these extreme views may not be correct. But the facts of this case clearly support the contention of the appellant. The money was deposited on 4 February 1920 by means of a challan the first column of which mentions the name of the plaintiff as the person on whose behalf the deposit was made. Column 2 mentions the name of the person to whose credit the amount was to be placed in the books of the Court, namely the decree-holder. Column 3 gives the number of the execution case and the names of the decree-holder and the judgment- debtor. Column 4 contains the particulars of receipt as the claim, with costs, due to the decree-holder. The following column mentions the amount deposited. On 4 of February the following order was passed by the Court in which the money was deposited: Judgment-debtor : 10 is permitted to deposit the decretal amount as prayed.

(2.) This order was followed by another order of the same date: Money deposited by judgment-debtor 10 and challan filed. Dismissed on full satisfaction.

(3.) Now on these facts the question that arises is whether the payment in Court or deposit in Court to the credit of the decree-holder and accepted by the Court was a payment within the meaning of Art. 99, Col. 3. In my judgment the deposit or credit in the circumstances, and in view of the order passed by the Court, must me taken to be a payment within the meaning of that article, The money was deposited in Court to the credit of the decree-holder and it was accepted by the Court on behalf of the decree-holder and the decree was satisfied in full.