BHOBANI NAIK Vs. BALARAM DHAL

JUDGEMENT

(1.) This is an appeal against an order of the learned District Judge of Cuttack dismissing an appeal from an order of the learned Munsif of Kendrapara disallowing a judgment debtor's objection in execution proceedings. The appellant is a judgment-debtor and the respondent is a decree-bolder. The respondent obtained a decree on 30 May 1933 and first put it into execution on 15th September 1933. This execution case was disposed of on 3 January 1934. The next application for-en-forcing the decree was not made until the expiry of three years from the date of the disposal of the first execution case. The judgment, debtor therefore raised the plea of limitation. The decree-holder wanted to save limitation by alleging several payments but none of these payments appeared in the handwriting of the judgment-debtor and the learned Munsif held, that these payments did not save limitation.

(2.) The decree-holder then filed an amended petition by which he sought to amend, his original petition by inserting therein that the judgment-debtor had made another payment of Rs. 14 within three years of the date upon which the first application was finally disposed of. It was said that this payment was recorded in the handwriting of the judgment-debtor or at least that a statement of the fact of payment was signed by him. Both the Courts below have held that this payment saves limitation and have dismissed the judgment, debtor's objection. It has been argued before me by the learnet advocate for the appellant that it was not open to the Court to consider this payment having regard to the provisions of Order 21, Rule 2, Sub-rule (3). That Sub-rule provides that: A payment or adjustment which has not been certified or recorded as aforesaid shall not be recognized by any Court executing the decree.

(3.) This payment had not been certified and the question arises whether or not it can be taken to save limitation. It has now been held by all the Courts that an uncertified payment cannot be considered. It has however been held that a decree-holder can certify an alleged payment after he has made an application for execution so as to be able to prove that payment in the execution proceedings, but in Joti Prasad V/s. Srichand A1R 1928 All 629 a Full Bench held that he could not certify an alleged payment after any objection bad been taken either by an officer of the Court before the issue of notice or by the judgment-debtor when he appears to contest the application for execution. It appears to me that the present case comes entirely within the Allahabad Full Bench case and I must follow it.