Krishna Manini Mittra vs Kali Krishna Tarafdar

P.B. Mukharji, J.—This is an application for execution of a decree, dated May 19, 1939. The application on the tabular statement was made on May 31, 1952, by the applicants is the executrices to the estate of the original decree-holder who died on May 29, 1949. As the dates will show, a period of more than 12 years has elapsed between the date of the decree and the date of the present application for execution. The outstanding point taken in defence by the judgment-debtor is limitation.

The decree, dated May 19, 1939'', was made in Suit No. 950 of 1938 of this Court. It was a consent decree. As the nature of tin decree is material, I will set out briefly its main features. The consent decree was for u/s 6,000 and settled costs of Rs. 500-Its exact terms are-

The decretal amount of Rs. 6,000 is payable in the following instalments:

(1) Rupees 450 by the 31st May, 1939;

(2) balance by monthly instalments of Rs. 250 commencing from the month of April, 1940; and

(3) in default of payment of the first instalment or any two subsequent consecutive monthly instalments, the entire decretal amount shall fall due and the Plaintiff will be entitled to execute the decree.

In the tabular statement it is alleged "on July 8, 1940, the "judgment-debtor, through his brothers, paid Rs. 1,000 leaving "the balance sum of Rs. 4,600". The balance for which the present execution is made is for this sum of Rs. 4,600. These payments are disputed and denied by the judgment-debtor. The judgment-debtor denies that he ever made any payment on July 8, 1940 or on any other date either by himself or by any other person or through his brothers of any sum towards the decree-holder''s claim or costs. The allegation of the applicants is that the judgment-debtor paid these sums through his brothers and that his brothers ultimately gave the decree-holder a security and a guarantee. On this point the applicants'' case is that the three brothers of the judgment-debtor, namely, Shib Krishna Tarafdar, Benoy Krishna Tarafdar and Sunil Kumar Tarafdar, guaranteed payment of the sum of Rs. 4,600 due by the judgment-debtor and these brothers also deposited with the decree-holder the title'' deeds of the premises No. 97/1. Taltala Lane, Calcutta, with intent to create security of their shares of the said premises for due payment of the said balance amount due under the decree. On May 30, 1952, a day before this application for execution, a suit was filed by the applicants for a mortgage decree in respect of the said premises-No. 97/1, Taltala Lane, Calcutta, against these three brothers of the judgment-debtor. In that plaint it was pleaded by the present applicants as Plaintiffs that on July 8, 1940, the brothers of the judgment-debtor agreed and guaranteed to pay the sum of Rs. 4,600 under the said decree and that the decree holder would not execute the decree for three months. On the facts as will appear now, more than three months expired long ago and it was not until May 30 and 31, 1952, that the attempt was made to execute the decree against the judgment-debtor and to enforce the guarantee against the judgment-debtbr''s brothers. To complete the picture on facts, it must be stated that the applicants have already obtained a preliminary mortgage decree in that suit on March 27, 1953.

In col. 10 of the tabular statement the applicants ask for leave to execute the decree for the sum of Rs. 4,600 and the costs of execution, by attachment and sale of the right title and interest of the judgment-debtor in the said premises No. 97/1, Taltala Lane, Calcutta. Three-fifths share of the same premises have already been the subject-matter of the preliminary mortgage decree being the interest of the three brothers of the judgment-debtor therein and what is now being intended to be attached and sold in execution of the decree is another 1/5th share of the judgment-debtor in the said premises.

An application for execution of the decree in this case is governed by Article 183 of the Limitation Act. The limitation provided by that article is 12 years. It is in respect of an application

to enforce a judgment, decree or order of any court established by Royal Charter in the exercise of its Ordinary Original Civil Jurisdiction or an order of the Supreme Court.

The period of 12 years runs from the point of time-

when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right: Provided that when the judgment, decree or order has been revived, or some part of the principal money secured thereby, or some interest on such money, has been paid or some acknowledgment of the right thereto has been given in writing signed by the person liable to pay such principal or interest, or his agent to the person entitled thereto or his agent, the 12 years shall be computed from the date of such revival, payment or acknowledgment or the latest of such revivals, payments or acknowledgments, as the case may be.

On behalf of the applicants for execution, Mr. Gouri Mitter has argued that the execution is saved from limitation in this case, first by reason of the nature of the instalment decree in this case and, secondly, by reason of the payment made on behalf of the judgment-debtor. If there was payment in July, 1940, then this application on May 31, 1952, is said to be within 12 years within the meaning of the proviso contained in the third column of Article 183 of the Limitation Act from the date of that alleged payment.

On the first branch of the argument of Mr. Mitter on the nature of the instalment decree as saving limitation in this case, it is necessary to formulate his contention. The gist of his argument is that the decree being one payable in instalments the decree-holder need not exercise his option under the default clause and he is at liberty to wait till the last instalment becomes due under the decree and as that in this case is within the period of 12 years, this application is saved from limitation. This argument at best can save a portion of the decree but not the whole decree, because on the assumption that such argument is sound, there can be execution only for such of the instalments under the decree as could be brought within the period of 12 years from May 31, 1952, which is the date of the application. It is not, however, an application for execution for particular instalments which are within limitation. No application has been made even to amend the present application for execution of the whole decretal balance with a view to include only such portions of the instalments as are within the period of limitation. The reason for not doing so is perhaps because Mr. Mitter realises that on the facts of this case the decree-holder did exercise his option under the default clause in claiming the balance of the entire decretal amount at least as early as July, 1940. Having exercised that option once, it can no longer be open to the decree-holder or his representatives now to go back upon it and claim for individual installments as provided in the decree. It is necessary, however, in this branch of the argument to notice the authorities on the point.

The main reliance to assist this argument is placed on the Full Bench decision of this Court in Ranglal Agarwalla and Ors. v. Shyamlal Tamuli and Ors. AIR (1946) Cal. 500. The Full Bench decision in that case was delivered by Chakravartti, J. as His Lordship then was. That decision concerned an interpretation not of Article 183 of the Limitation Act as the present application before me, but of Article 182(7) of the Limitation Act. The Full Bench decision, however, in that case considered the nature of the installment decree. At p. 504 Chakravartti, J. observed:

An instalment decree, containing a default clause, consists really of three parts, First, there is the part which declares the amount due and it binds the decree holder and the judgment-debtor equally and absolutely. Next, there is the part providing for payment by installments, and it is for the benefit of the judgment debtor. Lastly there is the part providing that in ease of a default, the whole o the unpaid balance shall become due, and it is for the benefit of the decree-holder who is given a right to foreclose, as it were, the installments. Such a provision in our view, must, whenever possible be construed in favour of the decree-holder whose right to get immediate payment has once been interfered with by the order for installments and the correct way to construe it is to hold in favour of an option, unless the language used in the decree clearly bars it. * * A proviso within an installment decree which merely says that in the event of a default, the entire amount shall immediately become due or payable does not, we think, exclude an option in the decree-holder to take advantage of it or not to do so; it is not intended to be substitutive of the order for installments in case of a default, but only to come into force as an alternative at the will of the decree-holder.

Having explained the nature of an installment decree his Lordship proceeded to emphasise the importance of considering in each case whether the option had been exercised by the decree-holder and what would be the evidence of the exercise of such option. As this point is material for the present application, I quote his Lordship''s following observations at p. 505 of that report:

In our opinion, the correct view is not that when there is no evidence of waiver, the option must be deemed to have been exercised, but that when there is no evidence that the option has been exercised, it must be deemed to have been waived. When the decree-holder applies for realisation of the installments rather than for the whole amount, that itself is evidence that he does not wish to exercise his option, or to put it in another way, wishes to exercise it in favour of abiding by the installments; and unless there is something to show that he had previously sought to enforce the default clause, it is not easy to see how it can be said that he must nevertheless be deemed to have done so.

The ratio of that Full Bench decision is that where a decree directs payment of the decretal amount by installments on particular dates and provides that in case the Defendant fails to pay any installment at the stipulated time the entire decretal amount will be due, then after a default has occurred, the decree-holder has the option either to execute for the balance of the entire decretal amount then remaining due or to execute for the particular installment which the judgment-debtor has failed to pay and if the decree-holder executes for the particular installment that has fallen due, then the decree-holder has for his application three years'' time under Article 182(7) of the Limitation Act from the due date of the particular installment for which he is executing.

Many features, however, distinguish that decision from the present case. In the first place, the language of Article 182(7) is materially and substantially different from Article 183 of the Limitation Act. This difference in language must, in my view, necessarily produce different results regarding the starting point of limitation under Article 183 as compared to Article 182(7) on the question under consideration." The limitation of three years under Article 182(7) runs from the date-

where the application is to enforce any payment which the decree or order directs to be made at a certain date.

That was the provision which was the subject-matter of the decision of the Full Bench. The material words on which that decision turned were "payment which the decree directs to be "made at a certain date". It is decided by the Full Bench that where a particular installment is not paid on the due date, the decree-holder can avail of the option to execute for the balance of the entire decrial amount then remaining due-or he can take the benefit of each direction for the payment of each installment as a separate direction within the meaning of Article 182(7) of the Limitation Act. The language in Article 183 of the Limitation Act does not use the word "directs" but says that the time of 12 years will run from the date when "a present right to enforce the "decree" accrues. The "present right to enforce the decree" within the meaning of col. 3 of Article 183 of the Limitation Act is not obviously the same thing as "payment which the decree "directs to be made" under Article 182(7) of the Limitation Act. To me it appears that in the case of an installment decree with a default clause, there is a "present right" to enforce the whole amount of the balance remaining due under the decree when the default accrues, and I cannot see how that "present right" can be avoided although each installment was payable at different dates.

In this case "a present right" within the meaning of the third column of Article 183 of the Limitation Act accrued from June, 1939, after the judgment-debtor''s failure to pay the first instalment that fell due on May 31, 1939. It is true that the decree-holder could sue for the installments as and when they fell due. It is also true that the decree-holder could have executed the whole of the balance of the decree when the requisite default as provided by the decree occurred. It is also true that the option to avail of the default clause is for the benefit of the decree-holder. "But ''a present right'' to enforce the entire decree "springs in favour of the decree-holder when the default under '' ''the decree occurs and such - ''present right'' is not contingent "upon the exercise of the option of the decree-holder and the "limitation under Article 183 begins to run from the date when "such ''present right'' accrues". Whether the decree-holder wills or not, the decree itself provides "a present right to enforce" when the necessary default occurs. He may certainly choose to exercise his option not to sue for the entire balance of the decree under the default clause and wait for each installment to fall due but then such exercise of option does not and cannot extend the period of limitation to execute for the whole balance of the decree but only preserves his right to execute for such installment as it falls due, provided that the period of limitation between the due date of each installment and the application for execution of each such installment is not overstepped. This conclusion also appears to be enforced by the observations of Sir George Lowndes in the Privy Council decision, although dealing with Article 132 of the Limitation Act in Lasa Din v. Gulab Kunwar (1932) L.R. 59 IndAp 376, 385, where the learned Judge discusses the question when the cause of action arises.

The next decision is one of the Patna High Court m B.K. Mitra and Another Vs. Bhajan Lal Chaudhury, . This was a case on Article 183 of the Limitation Act in respect of a Calcutta High Court decree transferred for execution. Fazl Ali, C.J., delivering judgment in that case came to the conclusion that where a decree-holder filed an execution petition to recover the whole of the amount due under an installment decree but only the last two installments were recoverable as having fallen due within 12 years of the date of the execution application and the rest was barred by limitation, the decree-holder could be allowed to amend the execution petition by inserting the amount of the last two installments even after 12 years of the dates when they fell due and the amendment would take effect from the date of the original presentation of the execution petition. As I have already said, no question of amendment of the expectation petition limiting it to particular installments within the period of 12 years arises in this case before me and that for the good reason which I have already mentioned that the decree-holder in this case had exercised his option to claim the entire balance of the decretal amount and, therefore, cannot now go back upon it and claim specific installments which are within the period of limitation. Even, there Fazl Ali, C.J, made it quite clear that where an installment decree provided that on default of any one installment the decree-holder should be entitled to execute the decree for the whole of the unpaid balance and no installment was paid, the decree-holder could waive the installments which fell due beyond the period of limitation, i.e., beyond 12 years of the date of the execution petition and could recover those which fell due within 12 years of the date of the execution application. Here in the present case before me far from waiving the decree-holder exercised his option to claim the entire balance of the decretal amount when the default occurred.

I will only add this, before leaving this branch of the argument, that it is in my view inappropriate to construe Article 183 of the Limitation Act with reference to what happens to installment decrees under other articles of the Limitation Act, The question in every case depends on the particular article of the Limitation Act and not on the mere fact alone that it is an Installment decree with a default clause.

Secondly, the overriding reason for which this application should fail is that the decree-holder released the judgment-debtor at least for 3 months, had entered into a fresh agreement with the brothers of the judgment-debtor who were strangers to this decree and obtained a security from such strangers for the satisfaction of the judgment-debt. The effect of taking a security and a guarantee from strangers to the decree for installment makes it at any rate quite impossible now for the decree to be executed according to the terms of the settlement as provided by the decree. The decree provided for certain installments payable on certain date. There was failure to pay these installments Thereafter in 1940 this guarantee and security was taken from the brothers of the judgment-debtor and the affidavit of the present applicants admits that the brothers of the judgment-debtor

in consideration of the Plaintiff agreeing not to execute the, said decree for a period of 3 months from that date (July 1940) guaranteed payment of the said balance amount due under the said decree and as security for due payment thereof deposited the title deed of premises No. 97/1, Taltola Lane, Calcutta, with intent to create a security in respect of the right, title and interest of the said Shib Krishna, Tarafdar, Benoy Krishna Tarafdar, and Sunil Kumar Tarafdar.

Having given time the whole decree as such in its installment feature became entirely adjusted and it had become one composite decree or at any rate with installments which were no longer executable. The reason why I say that the installments were no longer executable is that the agreement pleaded by the applicants themselves does not show that the installments as provided by the original decree stood extended for 3 months for each installment under the original decree. If that be so, then the question of executing each individual installment no longer arises because the terms of the original consent decree directing such installments cannot be enforced by reason of the intervening agreement made with the guarantors and staying execution at least for a time being.

Thirdly, there is also another conclusive answer to this argument against this contention. The plaint in the mortgage suit shows that a sum of Rs. 4,600 had become due under the mortgage in execution and that the decree-holder claims that sum. Not only did he claim that skim, but he obtained security by way of equitable mortgage by deposit of title deeds from the brothers of the judgment-debtor. That is conclusive evidence that the decree-holder exercised the option to claim the entire amount then remaining due under the decree by reason of the default in payment of instalments as provided thereunder. There is, therefore, on the facts of this case no room for the decree-holder to say that after having exercised the option and having claimed the entire balance of the decree due to default of the instalments, he will now salvage this application for execution of the whole amount by discarding such portions of the instalment as have become barred by now and claiming such other instalments as are not so barred.

Realising this difficulty, Mr. Mitter for the applicants relied on the payment made in July, 1940 to save his clients from limitation. If as an executing court on the present application for execution I can take into account such payment, then obviously this application will be protected under the proviso in the third column of Article 183 of the Limitation Act because such payment is within the period of 12 years from the date of this application for execution. The payment itself is disputed by the judgment-debtor. The persons who made the disputed payment are sometimes said by the applicants to be the brothers of the judgment-debtor as in the plaint in the mortgage suit and at other places the payment is said to be by the judgment-debtor through his brothers as in the Tabular Statement of the applicants. The judgment-debtor totally denies any payment by him or even by his brothers on his behalf.

The point naturally arises whether payment, assuming that there was one if made by a person who is a stranger to the suit and the decree, could avoid limitation. The second point that arises on this branch of the argument is that this alleged payment is not only not disputed but is also not certified and recorded under Order XXI, Rule 2 of the Code of Civil Procedure.

Taking up Mr. Mitter''s argument that payment by a stranger can avoid limitation under Article 183 of the Limitation Act, it is necessary to state the form in which Mr. Mitter has presented his arguments. According to that argument, the proviso in the third column of Article 183 when referring to payment does not require such payment to be made by the judgment-debtor himself and, therefore, it is contended that such payment can be made by any person in the world. It is argued that the proviso makes a clear difference in this respect between payment and acknowledgment. It is said in support of this argument that in the proviso it is only the acknowledgment which has to be signed either by the person liable to pay or his agent, but in the case of payment this requirement being absent it can be made by any one who has nothing to do with the judgment-debtor. In support of this argument, Mr. Mitter relied on two decisions, one of the Madras High Court and the other of the Patna High Court. The Madras decision in Arjee Arjee Prabappa Chetti Vs. Koneti Desikachari, . It is a decision by Courts-trotter, C.J. and Srinivas Ayyengar, J. In that case what happened was that the original decree-holder died without drawing certain moneys from the court where it was deposited and it was directed to be paid to him, but subsequently the Administrator-General as administrator pendente lite in the Administration Suit relating to the deceased''s estate applied to the court for payment to him of the entire sum standing on that date to the credit of the suit. An order was passed directing such payment and where an application for execution was made within 12 years from that date when the payment out was made from the court in accordance with the order of the court, it was held that it was a proper application by the Administrator-General though previous to that application he had not brought himself on the record in the place of the deceased decree-holder. There Srinivas Ayyengar, J. in his judgment says at p. 1132:

It has next been argued that the payment referred to in Article 183 must have been a payment either by the judgment-debtor himself or by some duly constituted agent or some person acting on his behalf. In Section 20 of the Limitation Act, where a part payment is referred to as giving rise to a further starting point of limitation, it is significant that it is prescribed that, for the purpose of saving limitation, the part of principal of a debt should be paid by the debtor or by his agent duly authorised in that behalf; but in Article 183, however, there are no such words to be found after the words "some part of the principal money secured thereby or some interest on such money has been paid".

The payment is not, therefore, required to be made either by the debtor or by some person acting on his behalf. The difference in the working is significant, and, I cannot help tanking, fully intended. It, therefore, follows that, even if payment is for the judgment-debtor or on his account, it would be a payment that will save limitation giving arise to a fresh starting point.

The next decision is in the case of Tugan Mull Vs. Ladhu Lal and Others, . In that decision Fazl Ali, J., at p. 219 referring to the above case observes:

I find in the decision of this case ample authority for the proposition that the word "payment" has been used in Article 183 in a wider sense than in Section 20 of the Limitation Act, and as the word "payment" used in Article 183 is not qualified in any way as to the mode in which the payment is to be made or as to the person who has to make it, I am of the opinion that the payment of Rs. 600 on or about the 17th April, 1916 provided a fresh starting point for limitation.

In this Patna case, however, the payment was made by one judgment-debtor and it was held there that sitch payment by one judgment-debtor not only saved limitation as against the paying judgment-debtor but also against the other judgment-debtors.

It will appear from these two decisions that, on the facts payments in these two cases were not payments by complete strangers. In the one case it was the payment out to the Admin istrator-Generab as administrator pendent lite by an order of the court previously made, and in the other case it was payment by one judgment-debtor. One can understand that a judgment-debt being one, as in the Patna case, payment by one judgment-debtor would reduce the judgment-debt for every other judgment-debtor and, therefore, payment by one would save limitation as against the others. It is unnecessary for me to decide on this application whether the Patna or the Madras decision which I have just quoted is rightly decided or not and whether they can be taken as authorities for the extreme proposition that payment to avoid limitation under Article 183 of the Limitation Act could be made by any one in the world. To say that any one in the world could make such payment would be assenting to the proposition that the decree-holder may plead payment by himself just on the eve of limitation and thereby wipe out all questions of limitation in execution. It will be rather a serious result and I am not prepared on the present materials to express any opinion one way or the other as I feel- that the limits of such proposition will require much more careful scrutiny in an appropriate case than they have received so far. It is enough for me to say that the decisions in these two cases must naturally be read with reference to the facts of these cases according to the well-known observation of Lord Halsbury, L.C. in Quinn v. Leatherm (1901) A.C. 495. at p. 506. It is not necessary for me to decide the point also because of the view that I take on the second branch of the argument on this point concerning the fact that the alleged payment in this case is neither certified nor recorded under Order XXI, Rule 2 of the Code of Civil Procedure.

Mr. Mitter for the applicants has contended before me that the fact that the alleged payment has not been certified or recorded is not an obstacle on the way of execution. He formulates his arguments in this way. According to him it is not necessary for a decree-holder under Order XXI, Rule 2(1), Code of Civil Procedure, to make an application for certifying payment to the court and for the court recording it. For that purpose he relies on the decision of Suhrawardy and dimming, JJ. in Jalim Chand and Another Vs. Yusufali Choudhuri, . Suhrawardy, J., at page 1013 observed in that case:

It is not, therefore, incumbent upon the decree-holder to certify payment by making an application and if he is not required to make an application it is difficult to argue that Article 181 applies.

The question which the learned Judge was there considering; was the difference in language between Sub-rule (1) and Sub-rule (2) of Order XXI, Rule 2 of the Code of Civil procedure. The learned Judge''s view is that,

in order to certify payments it is enough that the decree-holder mentions the fact of such payment in the application for execution of the decree in respect of the balance and it is not necessary for the decree-holder to make an application for that purpose to certify such payment.

It seems to me that the point raised here is more fundamental than the one considered by that decision. Whether an application, formal or informal, has to be made is not the point here so much and it may be quite a teasing legal problem to find out how in a court of record a decree-holder has to mention the fact of payment and court to record such payment without some kind of record being placed before the court. But that is beside the point here. The language of Sub-rule (1) of Order XXI, Rule 2 says that the decree-holder shall certify to the court and that the court shall record it. The point, therefore, is that the decree-holder must certify and the court must record. If it is neither certified nor recorded, then no court executing the decree shall, under Sub-Rule (3) of Order XXI, Rule 2 take such uncertified or unrecorded payment into account.

What is urged by Mr. Mitter is that in the application for execution he has pleaded payment, in other words, his argument, is that his clients had certified payment in July, 1940 in the application for execution which they made on May 31, 1952 and, therefore, Mr. Mitter argues that his clients are within the period of limitation and for that purpose reliance is placed on the decision in Atarmani Dassi v. Bipin Behari Dhar AIR (1989) Cal. 193 where Costello. J. came to the conclusion that the filing of the Tabular Statement was an application to the court within the meaning of Article 183 of the Limitation Act. The language of Sub-rule (1) of Order XXI, Rule 2 as I have already said, requires the decree-holder not only to certify but it also requires the court to record. So, even if the statement in the Tabular Statement or in the affidavit in support of the Tabular Statement about payment in July, 1940 is accepted as sufficient certification, the fact remains that the court has not recorded such payment as yet.

The question is whether the court should now record it with retrospective effect so as to save this application from limitation, by making it a certified and recorded payment and thus enabling the court to take such payment into account in execution under Sub-rule (3) of Order XXI, Rule 2 of the Code of Civil Procedure. The decisions appear to indicate that although no-time limit is fixed for the decree-holder to have the payments certified to the court and recorded by the court, nevertheless it should be done before and not after the period of limitation for executing the decree is over. The decision in Jalim v. Yusuf (7) says that the certification cannot be postponed indefinitely for it must be within three years before execution is applied for to save the decree from limitation, as in that case the limitation for the execution of the particular decree was three years. This case was approved by the Judicial Committee of the Privy Council in (1928) L.R. 56 I.A. 30 (Privy Council) . There is, however, a more recent decision than Jalim''s case and that is in Bahuballav Roy v. Jogesh Chandra Banerjee (1918) 23 C.W.N. 320 which is a Bench decision of Fletcher and Shamsul Huda, JJ. Fletcher, J. delivering judgment in that case observes:

But Order XXI, Rule 2(3) of the CPC expressly provides that art executing court shall not recognise any payment that has not been certified. Then the Appellant, the decree-holder, states that he can certify the payments made at any time. That is quite true, subject, of course, to the ordinary rule of limitation that the certification must take place within such time as is reqtiired to save the case from being barred by limitation. He cannot postpone the certification for a long period of years and then say that he will save the decree from being barred by limitation by certifying the payments then.

To the same effect is the Bench decision in Bireswar Mukherjee v. Ambica Charan Bhattacharjee ILR (1917) Cal. 630 which lays down the proposition that no uncertified payment or adjustment can operate to prolong the period of limitation for an application for execution of a decree under the Limitation Act. This principle is not altered by the Privy Council decision in Prokash Sing v. Allahabad Bank Ltd. (10). There the Privy Council says that certification to the court under Order XXI, Rule 2(1) by a decree-holder of a payment made to him out of court, even if made in the form of an application, is not an application within Article 181 of the Limitation Act so as to be barred unless it takes place within three years of the payment certified. That decision expresses the view that there is no article which limits this time and that certification under Sub-rule (1) of Order XXI, Rule 2 can take place when, the execution of the decree is barred but for the payment certified. What happened there was first a certification of certain payments in March, 1917 and then a second certification of payment of some more money in December, 1924 and the application for leave to execute was made in February, 1925. It was in that context that the Privy Council overruled the contention that on the date of the second Certification in December, 1924 the decree in that case had become barred because there was no certification between March, 1917 and December, 1924. But the Privy Council did not in that case say that the certification and record under Order XXI, Rule 2(1) could be postponed even after the execution of the decree had become barred, so that by such certification and record the Court can enable itself to entertain time-barred applications for execution. A still closer analysis will make the conclusion plain. Under Order XXI, Rule 2(1) there is no time limit for the decree-holder certifying to the court and the court recording such payment or adjustment as certified. The limitation, however, for an application to execute a chartered High Court decree on the Original Side is 12 years from the date when the present right to enforce such decree accrues. If such a decree-holder then comes to make an application for execution of the decree long after the limitation of 12 years is over, can he ask the court that although his application for execution is barred by limitation, he proposes to certify a certain payment and have it recorded after the period of limitation so that he could be given another period of 12 years from such certification and record. I am unable to assent to such a proposition. To uphold it, will mean that there is no limitation for execution of a decree where there has been an adjustment or payment. For, in that case every decree-holder can come after the period of limitation to execute the decree is over and Say that a payment or adjustment had been made although not recorded in time, but as there is no limitation under Order XXI, Rule 2(1) he can have it certified and recorded at any time after limitation so as to give him fresh limitation from such certification and record. I, therefore, hold that while there is no time limit for a decree-holder to certify payment or adjustment to the court and for the court to record the same, this provision of Order XXI, Rule 2(1) of the CPC must not be read, construed and applied in such a manner as to defeat the provisions of the Limitation Act for execution of the decree. I hold further that no uncertified and unrecorded payment or adjustment can operate to prolong the period of limitation for an application for execution of a decree under the Limitation Act if at the time of such certification and record the execution of the decree had already become barred. In other words, the provisions of Order XXI, Rule 2(1) of the CPC while providing for no limitation by itself, should in my judgment, be read subject to the overriding limitation for execution of a decree under the Limitation Act.

Much of the confusion on this branch of the law arises from the neglect to appreciate that what is required under Sub-rule (i) of Order XXI, Rule 2 is not merely certification by the decree-holder to the court but also record of the same by the court. The language of the Sub-rule is:

The decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree and the court shall record the same accordingly

Under Sub-rule (i) of Order XXI, Rule 2, therefore, two conditions must be fulfilled before a payment or adjustment can be recognised by the executing court. One is certification of the payment by the decree-holder to the court, and the other is the record of the court of such payment accordingly. Sub-rule (iii) provides that a payment or adjustment which has not been certified or recorded as aforesaid shall not be recognised by any court executing the decree. It seems to me clear in this case that there is no record by the court of such alleged payment. It cannot be recognised by the executing court at this stage. I will only add here that the Privy Council in Prokash Singh v. Allahabad Bank Ltd. (10), decided that the application for execution of the decree in that case was not time-barred because the payments there were both certified and recorded To quote the language of Sir Lancelot Sanderson who delivered the judgment of the Privy Council at p. 43,-

Consequently, the application for the execution of the decree by reason of the payments certified and recorded was not time-barred.

It is needless to add that even the adjustment of the decree in this case by the agreement with the judgment-debtor''s brothers whereby they created an equitable mortgage by deposit of their title deeds as security and the decree-holder took a guarantee from them, has also neither been certified nor recorded.

The application, therefore, fails and is dismissed. I will, however, make no order as to costs.