GANESH MAHTO Vs. BHAWAN MAHTO

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for contribution which was decreed by the trial Court but has been dismissed on appeal by the lower Appellate Court on the ground of limitation. The only question to be decided in this Court is whether the decision of the lower Appellate Court as to limitation is correct. It appears that one Jitan Mahto had a joint decree for rent against the plaintiff arid defendants, and in execution of that decree he obtained from the third Munsif of Chapra, to whom he had applied for the execution of the decree, an order for the attachment of a sum of Rs. 163-2-6, which had been paid into the Court of the Fourth Munsif by one Parmeshwar Mahto, a judgment-debtor of the plaintiff, to the credit of the latter. On 30 July the original order of attachment was modified by the Third Munsif as follows: Decree-holder is allowed to withdraw Rs. 40-8-8 only out of Rs. 163-2-6 and in respect of the balance amount, the attachment is withdrawn. Inform the Court concerned accordingly. Put up on the date fixed for further orders.

(2.) Subsequently on 20 August, the same learned Munsif passed the following order: Let the attached money be transferred to the credit of decree-holder and send the payment order to the Court concerned and put up on 2 September, 1982 for orders. On 3 September 1932, the payment order was made over by the Fourth Munsif to the decree-holder's pleader. Art. 99, Limitation Act, which is undoubtedly the proper Art. applicable to the present suit provides that the period of limitation in a suit for contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, is three years from the date of the payment in excess of the plaintiff's own share.

(3.) Thus the real question to be decided in this appeal is what was "the date of the payment" in the present case. The plaintiff's contention is that the date of the payment was 3 September 1932, when the payment order was handed over by the Fourth Munsif who held the plaintiff's money, to the decree-holder's pleader. On the other hand it is contended on behalf of the defendants that the date of the payment was 20 August 1932, because on that date the Third Munsif directed that the attached money be transferred to the credit of the decree-holder and the payment order sent to the Court concerned.