RAGGHI Vs. NATHU LAL

JUDGEMENT

(1.) THIS is a second appeal by the judgment-debtors, appellants, in an execution case. The only question for determination is one of limitation. Ragghi alias Raghubar, appellant 1, executed a mortgage deed in favour of the deceased father of the decree-holders, respondents. A suit was brought on the basis of that mortgage against Ragghi and his two sons, the other appellants in this appeal. A preliminary decree was passed in due course and it was made final on 10 March 1932. An application for execution of that decree was made against Ragghi and his two sons on 11 November 1935. THIS was more than three years after the date of the final decree, but limitation was sought to be saved by reason of a payment of Rs. 50 made by Ragghi towards interest on the decree on 17 February 1935. It has been found that Ragghi made the above payment and that he gave a writing in respect of it. The lower Appellate Court in coming to a decision has relied upon the case in Ibrahim V/s. Jagdish Prasad Learned Counsel for the appellants has pointed out that this case was overruled by a Full Bench of this Court in Mohammad Taqi Khan V/s. Raja Ram (1938) 23 A.I.R. All. 820. The Full Bench held that an acknowledgment made under Section 19, Limitation Act, or payment of interest or principal made under Section 20 of the Act by some only of the heirs of a mortgagor, against whom a decree for sale on the basis of a mortgage has been passed, does not operate to save limitation as against the other heirs of the mortgagor who have made no such acknowledgment or payment.

(2.) THE decision of the Full Bench was based on the provisions of Section 21, Clause (2), Limitation Act. It has no application to the present case which is a case of a joint Hindu family and in which the father as manager has made a payment obviously on behalf of the family. For such a case ex. press provision has been made in Clause (3), Sub-clause (b) of Section 21, Limitation Act. Learned Counsel for the appellants has sought to take out the present case from the above- mentioned provision of law by trying to show that the payment made by Ragghi was not a payment as manager of the joint Hindu family of himself and his two sons but in his personal capacity. I regret I am unable to accept this contention. THE receipt passed by Ragghi shows that payment was made on behalf and for the benefit of the joint family in order to stay the hands of the decree-holders in executing the decree and six months time was taken from the decree-holders to pay off the decretal amount in consideration of the payment of Rs. 50. I have no hesitation in holding that the payment by Ragghi was as manager of the joint family of himself and his sons and, as such, it saved time both as against himself as well as against: his sons who were all parties to the decree and liable under it. For the reasons stated above, this appeal fails and is dismissed with costs. Leave to file Letters Patent appeal is refused.