Maheshwar Charan and Another vs Dineshwari Charan

Wort, J.—This is an appeal from a decision of the Judicial Commissioner of Chota Nagpur and raises an interesting question of limitation. In plain language what happened was this. The decree-holder appellant who is represented by Mr. Sinha, obtained a decree on 10th September 1931 against the judgment debtor respondent represented by Mr. Baldeo Sahay in this Court. About 4th March 1932 a payment is alleged to have been made by the judgment-debtor respondent in part satisfaction of the decree: exactly what date is for the moment immaterial; but it is on the date mentioned that the decree-holder applied to the learned Judge to certify the payment, and 8th September 1984 was the date upon which the application for execution was made. It will be seen at once that unless the decree-holder can take advantage of the so-called application of 4th March 1932, his application for execution is hopelessly barred by limitation. It is necessary for the purpose of the case, and particularly for the purpose of the first point that has been argued to make lone further statement of fact. The payment by the judgment-debtor to the decree-holder was not made direct or in cash, but was made by an arrangement with a third party. Shortly stated it was this. The third party was a debtor of the judgment-debtor. The relationship of debtor and creditor also existed (between the third party and the decree-holder before this Court, and by an arrangement a set off was to be made between the third party and the decree-holder which was to enure to the benefit of the judgment-debtor. Now the document by which this arrangement was made is not before this Court, but it is agreed by the learned Advocates representing both the decree-holder and the judgment-debtor that there is no reference in that document to the judgment-debt, nor is it mentioned anywhere in that document that the payment was made in connection with the judgment-debt. But it does appear that the signature of the judgment-debtor before me is on that document. The matter can be best stated by saying that if a person reads the document knowing nothing of the facts of the case he will find nothing in the document to disclose the fact that any payment had been made by or on behalf of the judgment, debtor.

The learned Judge in the Court below had decided on the evidence that by this arrangement payment was made to the decree-holder on behalf of the judgment-debtor; but he has held that this does not assist the decree-holder and cannot be taken into consideration in determining the question of limitation. Mr. Sinha appearing for the decree-holder raises two questions: first, that the arrangement comes within Section 20, Limitation Act, and secondly, that the certification of the so-called payment was a step-in-aid of execution and time therefore began to run from 4th March 1932 and not from 10th September 1931, which was the date of the decree as I have already stated. So far as the first point is concerned I do not think there can be any kind of doubt. The matter is governed by the proviso to Section 20, Sub-section (1), Limitation Act. It will appear that the first part of the section deals with payment of interest on a debt or legacy or part payment of a principal of a debt before the prescribed period of limitation. Shortly stated any such payment so long as it complies with the section gives a fresh start for limitation, but the proviso states that an acknowledgment of the payment must be in the handwriting of or in the writing signed by the person making the payment. The proviso contemplates two facts: one, an acknowledgment in the handwriting of and signed by the debtor, or an acknowledgment in the handwriting of another person but signed by the debtor. As I have pointed out there is no acknowledgment, and indeed there is nothing in the document, which would in any way indicate that the judgment-debtor acknowledged the payment supposed to have been made on 4th March 1932; all that appears is his signature. To repeat myself there is no indication that any payment was made by or on behalf of the judgment-debtor. It cannot be said therefore in my judgment that there is an acknowledgment of payment in the handwriting or in a writing signed by the person making the payment. In my opinion therefore the first point fails.

The second question is whether the matter comes within Article 182, namely whether the so-called application was an application in aid of execution. In the recent case of, Prakash Singh v. Allahabad Bank Ltd. 1929 PC 19 their Lordships of the Privy Council had to consider certain part payments in the light of Article 181, Lim. Act, under a compromise decree. In that case the important point of fact was whether on a certain date (which was April 1922) there was a sum of Rs. 60,000 owing to the judgment-debtor and it was when such a sum was due that execution could be taken out by agreement between the parties. There it was argued on behalf of the judgment-debtor that certain part payments amounting to some lakhs of rupees could not be certified by the Court and therefore bad to be ignored as the certification had been mad6 out of time. If that argument had been acceded to, it would have shown that there was more than Rs. 60,000 due in April 1922, or in other words, that a debt of Rs. 60,000 which was a condition precedent -to execution being taken out, had existed a long time before and therefore the application for execution which was before the Court was barred.

The point therefore which their Lordships of the Judicial Committee had to decide, on an appeal by the judgment-debtor, was whether his case came within Article 181. Article 181 is a residuary Article as has been pointed out and deals with applications other than those provided for: The expression just made "other than those provided for" is in my own words but it is justified by the words of the section itself which are ''"application for which no period of limitation is provided elsewhere in the schedule etc. Now their Lordships of the Judicial Committee had before them a number of decisions of the various High Courts in India; but they declined to decide the merits of those decisions for the reason that they came to the conclusion that the certification of the payments made prior to April 1922 could in no sense be described as an application within the meaning of Article 181. Sir Lancelot Sanderson who delivered the opinion of their Lordships of the Privy Council, discussed Order 21, Rule 1 and showed that where a decree-holder wished to have a sum paid by his judgment-debtor on account certified, such certification was in no sense an application and not being an application could not come within Article 181. Their Lordships therefore advised His Majesty to dismiss the appeal, as the application in the circumstances which I have related was not barred by limitation. Their Lordships of the Privy Council expressly stated that some decisions in India had come to the conclusion that where a decrees-holder certified a payment he had taken a step in aid of execution within the meaning of Article 182, Clause (5), but they expressly, said that it was unnecessary for the purposes of the appeal to decide this question.

Now at this moment, the matter is in this position. Mr, Sinha rightly contends that their Lordships of the Privy Council did not decide the question with regard to Article 182 which was not before them. Mr. Baldeo Sahay on the other hand relying upon the decisions of the High Courts, although agreeing that they have not decided the matter expressly has contended that a decision in his favour is the only decision that can be arrived at having regard to their Lordships opinion in the case which I have referred to in some detail. The argument of Mr. Baldeo Sahay is this: that Arts. 181 and 182 used the expression ''application'' and there has been a change since 1927 and the articles now read "application or order." If the matter had to be decided I suppose I should hold that limitation ran either from the application or from the order in the present rule. But formerly the question was whether an application in aid of execution was an application or order. I agree with Mr. Baldeo Sahay that this makes no difference. If there was an order there must be an application and if there was an application there must be an order. Their Lordships of the Privy Council have pointed out that in the case of certification there is neither, it is merely a certification impliciter. If the decree-holder calls his certificate an application it is not such merely by his using that expression. I cannot help agreeing at any rate to some extent with, Mr. Baldeo Sahay''s argument that their Lordships of the Judicial Committee once, having decided that ''application'' is not an expression which is apt in the case of certification they almost decided the point which we have before us. At any rate Mr. Baldeo Sahay has contended that since the decision of the Privy Council the tendency has been the other way and indeed the decisions have all been entirely different since the case referred to. Amarkrishna Chaudhuri v. Jagatbandhu Biswas 1931 Cal 719 is a decision in point where Ghose, J., in coming to his conclusion said:

In my view the observations of their Lordships of the Judicial Committee conclude the matter and it is unnecessary to pursue the matter further.

It is well understood that a decision is only an authority for what it decides. But as I understand Ghose, J.''s statement it is this: that once the Privy Council have decided that there is no such thing as "application" in the matter of certification by a decree-holder, they decided the question which came before the Calcutta High Court and comes before me. At any rate the decision to which I have just referred was come to on the footing that the word "application" could have no reference. By reason of Order 21, Rule 1, as pointed out by Sir Lancelot Sanderson, it is merely a certification. The Madras High Court have come to the same conclusion in Krishna Patter v. Seetharama Patter 1926 Mad 1178. This decision as well as that of the Calcutta High Court just referred to is expressly in point.

Now all I am offered on the other side is the line of decisions of the Calcutta High Court dealing with this matter, and the question is whether I should follow those decisions which have been described as the cursus curiae or adopt the recent decisions of the Calcutta High Court, the Madras High Court and what seems to be the irresistible conclusion to be derived from the decision of the Privy Council. I just briefly, state what the effect of the decisions is. There are only four of the Calcutta High Court which have been expressly referred to in the Full Bench decision reported in Amarkrishna Chaudhuri v. Jagatbandhu Biswas 1931 Cal 719. The first that I propose to deal with is the case of Rakhal Das v. Jogendra Narain (1909) CriLJ 467, a decision of 1909 rather later than the one to which I shall refer to afterwards, but I mention it for the purpose of disposing of it. It cannot be said that that decision is anything more than obiter. Mookerji, J., and the other learned Judge, in discussing the question as to the starting point of limitation at the end of their judgment, having decided the question immediately before them, stated that there was another difficulty in the way of the appellant; and then they refer to this particular point and have stated in substance that it is a step in aid of execution. In those circumstances the decision was merely obiter.

The next case to which I refer is the decision in Prakash Singh v. Allahabad Bank Ltd. 1929 PC 19, where the point was decided but without any serious discussion by the learned Judges of the matter. The decision in Wasi Imam v. Poonit Singh (1893) 20 Cal 696 was another short judgment in which the learned Judges stated that the point was not free from doubt, but they thought that they ought to follow the rulings of the Court and of the High Court in Allahabad. No detailed discussion had ever been made on this point until the recent Pull Bench decision of the Calcutta High Court. In Eusuffzeman Sarkar v. Sanchia Lal 1916 Cal 451, the only question decided was whether the decree-holder had done all that was necessary by notifying to the Court, at the time of the application in execution, the fact of payment by the judgment-debtor. There is a further decision, viz. the case of Umesh Chandra v. Akrur Chandra 1919 Cal 253. The head-note correctly states the decision to the effect that after part payments within three years from the date of the decree an application in execution is in time within the meaning of Article 182. There is no express decision on the point that it is a step in aid of execution, although the inference to be drawn from the decision I suppose must be to that effect. If I am to choose between the authorities the question is which view must adopt, there is no detailed discussion excepting in the latest decisions of the Calcutta and the Madras High Courts, and even apart from those decisions I agree with Mr. Baldeo Sahay that in coming to the conclusion whether there has been an application or, to use the words of the amendment, "or order" in aid of execution, the decision of their Lordships of the Privy Council assists Mr. Baldeo Sahay''s case that in case of certification by the decree-holder the expression "application or order" has no relevance. Once I come to that conclusion, quite apart from authorities, it seems to me that the matter is concluded as against the decree-holder. For these reasons I hold that the learned Judicial Commissioner was right in his decision and I would dismiss the appeal with costs. There will be leave to appeal under the Letters Patent.