Banchanidhi Kar vs Udekar Sahu and Others

Beevor, J.—This is a second appeal against the decision of the District Judge of Cuttack holding on appeal from the Munsif of Bhadrak that a certain decree was barred by limitation as against three persons.

The decree in question was passed on 24th June 1941 against four brothers on the basis of a debt incurred by their deceased father. On 20th May 1944 an endorsement was made by one brother who was judgment-debtor 2 narried Surjyamani Sahu of a payment towards satisfaction of the decree. On 6th July 1944, the execution proceedings were taken out against all brothers. On 22nd December 1944 an objection petition was filed on behalf of the three brothers judgment-debtors 1, 8 and 4 contending that the petition for execution was barred by limitation as against them. In reply the decree-holder urged that this claim was barred by consideration of res judicata under certain circumstances to which I will refer later.

The Munsif overruled the decree-holder''s plea of res judicata but held against judgment-debtors 1, 3 and 4 on the question of limitation. On appeal the learned District Judge did not deal with the question of res judicata but held in favour of those three judgment-debtors on the question of limitation. Hence the appeal by the decree-holder to this Court.

Mr. M.S. Rao on behalf of the appellants has argued both questions of res judicata and also the question of limitation on merits.

As regards res judicata I do not think that this plea ought to be allowed to be taken now in second appeal because it was not put forward in the memorandum of appeal. However if it had been open to the appellants there is very considerable force in his contention, because it appears from the order-sheet that notice was issued under Order 21, Rule [22?] with special mention of the alleged payment for the purpose of saving limitation and on 18th August 1944 judgment-debtors 1, 3 and 4 applied for time to file objection who were granted time but never filed any objections though attachment was made by 13th October 1944 and sale proclamation had been issued more than once and was actually served on 12th December 1944 before the objection petition was filed. I think that the decision of this Court in Sitla Sahai v. Gouri Nath AIR 1942 Pat. 477 is ample authority to support the view which I have taken. On the other point, the learned District Judge seems to have taken the view that the payment by judgment-debtor 2 was a fictitious one but this finding he has reached by throwing the burden on the decree-holder to prove independently of the endorsement that the payment was made. In this I think he is in error and in the circum. stances I think it must be taken that the payment endorsed by judgment-debtor 2 was actually made.

There still remains the question whether the payment and endorsement by one judgment-debtor would be sufficient to save limitation against all. Mr. M.S. Rao for the decree-holder was at first arguing on the basis that the decree was against the father and in that view he relied on certain dictum towards the end of the judgment in the case reported in Sarada Charan Chahravarty v. Durgaram De Sinha 37 Cal. 461 for the proposition that a payment by heir would be sufficient to save limitation against all. I should have some difficulty in accepting this case as an authority on the point because it appears that the learned Judges of the Calcutta High Court had in fact disposed of the case on other grounds and there was an earlier decision of a single Judge of the Calcutta High Court reported in Arjun Ram Pal v. Rahima Bcmu 14 I.C. 128, in which a different view was taken. But the position of one heir or one son of a deceased Hindu father as against his co-heirs or brothers may, I think, be very different from the case of one out of four brothers all of whom are judgment-debtors of the same decree, even though, that decree might have been passed on the basis of a debt originally incurred by their father. The decision of a Divisional Bench of this Court in Badri Das v. Pasupati Banarji AIR 1933 Pat. 1, held that where a mortgage was entered into by single mortgagor and after his death a person ''who inherited part of the mortgaged property made a payment towards interest, that payment would be valid not only against the successor of the mortgagor who made the payment but also against the person who prior to the payment has purchased the equity of redemption in another part of the property for the purpose of Section 20, Limitation Act. That decision was followed by James J. in Babu Sripati Samanta v. Lalji Sahu AIR 1936 pat. 361, and the principle of those decisions seems to me ito apply equally to a debt due from four judgment-debtors on a money decree and I therefore Ifaold on the basis of those decisions that the payment and endorsement by judgment-debtor 2 save limitation as against all four judgment-debtors. It is true that the decisions on which I have relied seem to be in conflict with a decision of Allahabad High Court reported in Genda Lal Vs. Hazari Lal, , but I am bound by the decision of a Divisional Bench of this Court in Badri Das v. Pasupati Banerji AIR 1933 Pat. 1.

For these reasons this appeal is allowed and the order holding the execution petition as barred by limitation as against the judgment-debtors 1, 3 and 4 is set aside and execution will be allowed to proceed against all four judgment-debtors. The decree-holder will be allowed costs of this appeal and of the lower appellate Court do be paid by judgment-debtors 1, 3 and 4.