Ganjhoo Deo Mohan Singh vs Hari Sahu

Dhavle, J.—This is an appeal by a decree-holder from an order of the Subordinate Judge of Banchi, upholding the judgment-debtor''s objection that the application for execution made by the former was barred by time and accordingly dismissing that application.

The applicant obtained a money decree for Rs. 7056 odd against the objector respondent''s father on 26th June 1936. He applied for execution of this decree on 21st May 1940, and his contention was that this application was in time because on 15th December 1987, the original judgment-debtor had made a part payment of Rs. 1600. The lower Court has accepted the evidence given on behalf of the decree-holder in support of this payment, and has found that this payment exceeded the interest due up to that time, but that there was no proof by the decree-holder of how he had appropriated the payment, nor any acknowledgment of the payment in the handwriting of or in a writing signed by the person who had made it. The payment, therefore, did not give rise to a fresh period of limitation u/s 20, Limitation Act; and following the Full Bench decision in Amar Krishna Chaudhury and Another Vs. Jagat Bandhu Biswas and Others, , the learned Subordinate Judge held that the decree-holder''s certification of the payment in his execution petition was not a step-in-aid of execution. The learned advocate for the appellant has drawn attention to Sonya Bisoi v. Ananda Padhano (38) 21 P.L.T. 650, which was also referred to below, but it does not seem that anything was said in that case which can help the appellant. What was decided in that case was that it was open to the decree-holder, even after an execution petition of 1934, to prove a payment made by some of the judgment-debtors in 1929, which was supported by a receipt written by them and which saved the decree-holder''s previous execution petition of 1932 from the time bar.

This view was in accordance with the decision in Elahi Bux v. Nawab Lall AIR 1919 Pat 136 the case of an installment decree with the usual provision for default. Execution was applied for in that case on 27th September 1917, on the footing that the judgment-debtor had only defaulted in paying the installment fixed for 11th April 1915. The judgment-debtor, however, denied paying an earlier instalment that was due on 11th April 1914, and contended that it was not open to the decree-holder to certify the alleged payment of 11th April 1914, more than three years afterwards as he had done by his execution petition itself. This contention was overruled on the ground that no period of limitation is prescribed for certification by the decree-holder, and the learned Judges held that it is open to the decree-holder to make the certificate at any time after the alleged payment. There is nothing in this decision or in the decision from Sonya Bisoi v. Ananda Padhano (38) 21 P.L.T. 650 in support of the contention that certification by the decree-holder is a step-in-aid of execution, or will by itself operate to save limitation. The learned advocate has cited Maung Law San v. Maung Po Thein AIR 1925 Rang 26, in which a single-sitting Judge of the Rangoon High Court held upon certain Calcutta authorities that "an application to certify is a step-in-aid of execution" and that such an application may be made by the decree-holder under Article 181, Limitation Act, at any time within three years from the dates of payments if made by the judgment-debtor in time, and will afford the decree-holder a fresh starting point for limitation within the meaning of Article 182(5), Limitation Act. This view, however, was held by two learned Judges of the same High Court in Maung Tun Hlaing v. U. Aung Gyaw AIR 1930 Rang. 64, to be "no longer good in the face of the recent decision of their Lordships of the Privy Council in Shri Prokash Singh v. Allahabad Bank Ltd. AIR 129 P.C. 19.

The old view that certification by the decree-holder is a step-in-aid of execution and provides a fresh starting point for limitation was overruled for a similar reason by the Full Bench in Amar Krishna Chaudhury and Another Vs. Jagat Bandhu Biswas and Others, (already referred to), which was followed in Adya Pradad Singh v. Lal Girjesh Bahadur AIR 1929 P.C. 19. President, Union Board, Pentapadu v. Sreenath Thirumala Venkata Srinivasacharyulu Ayyavarlu AIR 1936 Mad. 118 is a Madras decision in which the same old view was given up in view of the decision in Shri Prokash Singh v. Allahabad Bank Ltd. AIR 129 P.C. 19 and so far as I am aware, no Court has since Shri Prokash Singh v. Allahabad Bank Ltd. AIR 129 P.C. 19 regarded, certification by the decree-holder as a step-in-aid of execution giving rise to a fresh period of limitation. The learned advocate has not brought to our notice any decision, new or old, of this Court in which certification by the decree-holder was itself regarded as a step-in-aid of execution, though other Courts have not always regarded "any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of the execution of the decree" as a step-in-aid of execution, as was done in this Court in Sheo Sahay v. Jamuna Pradad Singh AIR 1925 Pat 459, nor have they always considered it unnecessary, as was done in Jagdeo Narain Singh v. Bhubaneshwari Kuer AIR 1928 Pat. 612, in order to attract the operation of Clause (5) of Article 182, Limitation Act, that the action taken by the decree-holder should be taken in the course of execution proceedings actually pending. The view that certification by the decree-holder is a step-in-aid of execution seems to have started with Tarini Dad Bandyopadhya v. Bishtoo Lal Mudhopadaya (86) 12 Cal. 608, where it was rested on the ground, that the judgment-creditor certifies in consequence of an arrangement as to payment between him and the judgment-debtor, because if he has not certified, the judgment-debtor could under the law compel him to do so, and that the effect of the certificate is to satisfy the decree so far as the sum certified is concerned. This was followed by a Full Bench of the Allahabad High Court in Sujan Singh v. Hira Singh (90) 12 All. 399, in which Mahmood J. considered that in certifying partial satisfaction u/s 258, Civil P.C. (now Order 21, Rule 2(1)), the decree-holder

is taking a step by which lie asserts enforcement of his decree in the exercise of those powers which are vested in him because he is a decree-holder.

But even payments out of Court, such as may be made by the judgment-debtor to the decree-holder under Order 21, Rule 1(1)(b) do not per se advance execution, but operate--at any rate, primarily--to reduce the judgment, debtor''s liability in execution, and this too, only if they are taken out of the bar imposed by Order 21, Rule 2(3), that is to say, if they are certified by the decree-holder under Clause (1) of this rule, or if action is taken by the judgment-debtor under Clause (2) of the same rule to have them "recorded as certified."

It is only in certain special circumstances that such payments operate to extend the ordinary period of limitation for execution. In instalment decrees, for instance, where the decree-holder is to take out execution only after one or more defaults, the payment of each instalment will postpone the starting point for limitation; payments coming within Section 20, Limitation Act, will also entitle the decree-holder to a fresh period of limitation. But even in such cases Order 21, Rule 2(3) will apply, that is to say, the decree-holder will derive no advantage from such payments as regards limitation unless he certifies them to the executing Court. As was observed in Shri Prokash Singh v. Allahabad Bank Ltd. AIR 129 P.C. 19, the rules contemplate that the decree-holder, to whom a payment has been made by the judgment-debtor out of Court, should certify such payment to the Court within a reasonable time in order that it might be recorded by the Court, and the judgment-debtor is protected by the provision that in the event of the decree-holder failing to certify the payment to the Court, the judgment-debtor may apply to the Court for a notice to issue to the decree-holder to show cause why the payment should not be recorded as certified, provision being made by Article 174, Limitation Act, that such application by the judgment-debtor must be made within 90 days of the time when payment was made; in view of these provisions, apparently, it was not thought necessary to provide any specific time within which the decree-holder must certify the payment under Order 21, Rule 2(1). Section 20, Limitation Act, which entitles the decree-holder to a fresh period of limitation from payments made by the judgment, debtor lays down several conditions for the protection of the judgment-debtor, and in particular, requires that an acknowledgment of such payment should appear in the handwriting of the judgment-debtor or should be signed by him. This makes it highly improbable that the Legislature should have intended to let the decree-holder have a fresh period of limitation from his certification, while laying down no period of limitation at all for his doing so. The object of certification appears to have been the benefit of the judgment-debtor ; as Peacock C. J. said in the Full Bench case in Fukeer Chand Bose v. Muddun Mohun Ghose (70) 13 W.R.F.B. 40, "if the plaintiff comes in at any time and certifies that he has been paid, he must be bound by it," and certification by the decree-holder or its equivalent when the judgment-debtor moves the Court under Clause (2) of Order 21, Rule 2, seems to be no more than the sine qua non for the recognition by the Court executing the decree of the payment in question. But even apart from this consideration, it can no longer be said, in view of the decision from Shri Prokash Singh v. Allahabad Bank Ltd. AIR 129 P.C. 19 that certification by the decree-holder involves any application by him for which any limitation is prescribed, while it is scarcely conceivable that an application for which no limitation is prescribed should come within Article 182(5), Limitation Act. As Rankin C.J. said in Amar Krishna Chaudhury and Another Vs. Jagat Bandhu Biswas and Others, , the intention of this Clause is

that if within the first period of three years (after a decree under execution) an application is made to the Court for execution or to take some step in aid of execution, another period of three years will become available (to the decree-holder): and if within that time another such application is made, then a further three years will become available, and so on. Each timely and proper application is to have the effect of an extension for three more years. It is to introduce an irrational surd into the process to attach this consequence to an act of the decree-holder which need not be done in any given time.

The result is that, in my opinion, the lower Court was right in holding that the appellant''s execution petition was barred by time the payment of 15th December 1937, did not comply with the requirements of Section 20, Limitation Act, and therefore, did not extend limitation, though the Court was bound to record it on certification by the decree-holder even after the expiry of three years from the decree, but the certification of May 1940, had no effect whatsoever in saving limitation. I would accordingly dismiss this appeal with costs.

Harries, C.J.

I agree.