Shadikhan vs R.H. Royan

Kailasam, J.

(1) The question that arises in this civil revision petition is whether the execution petition is in time. The decree put in execution was passed on 5-

12-1956. The execution petition, which is the subject matter of this petition, was presented in court on 10-8-1960. The decree-holder relied on

certain payments made by the defendant for which he had given credit to for saving limitation. The agent of the decree-holder filed an affidavit in

which he gave particulars of payments made by the defendant. The Registrar Court of Small Causes, Madras, who heard the application by the

decree-holder for arrest of the judgment debtor for recovery of the arrears of the decree amount, held that the application was in time, as the

defendant himself admitted that he paid towards the decree in July 1959. In the N. T. A. No. 88 of 1961 the Court of Small Causes came to the

conclusion that as the payments were not certified by the court and as there was no reference either in the execution petition or in the affidavit of

the decree-holder''s agent that any payment made outside court was certified, the execution of the decree was barred by time. Against this order

the present revision is filed by the decree-holder.

(2) It was contended by the learned counsel for the petitioner that under S. 21 R. 2 C.P.C. the decree-holder can certify any part payment

towards a decree at any time provided that part payment was made within 8 years of the prior execution application. It is no doubt true that there

is no period of limitation prescribed for the certification of payment by the decree-holder. But the payment should be within 3 years of the previous

execution application. It admitted that the decree-holder did not certify the payment and have it recorded by the Court. It is now contended as

there was a payment in July 1959 within three years of the previous application and as the execution petition was filed on 10-8-1960, the

application was in time. Learned counsel for the petitioner strongly relied on Masilamani Mudaliar Vs. Sethuswami Aiyar and Another, in support

of his contention. In that case, it is held that as regards payments acknowledged in the execution application, they cannot be ignored as not

certified, if they were as a matter of fact made. In that case in the application the payments were acknowledged. It was held that the payments as

they were set forth in column 5 of the execution petition could be accepted as certificate of payments under clause (1) of the rule, though no time

for certification or the manner of certification was prescribed under the rules. If the payment is specifically mentioned in the execution application,

that payment will have to be considered in the light of S. 20 of the Limitation Act. In Rajam Iyer v. Anantharatnam Aiyar, AIR 1916 Mad 958 (2)

a Bench of this court held,

The executing court can recognise payments made within time, though they were not certified before the expiry of the period of limitation and as

the decree-holder was not tied down to anytime for certifying payment to the court the necessary result must be that once the certificate is made

the court is bound to recognise the payments previously made and then S. 20 of the Limitation Act comes in to save limitation.

In deciding the case the Bench directed the trial court to ascertain whether the alleged part payments were actually made and whether the other

provisions of S. 20 of the Limitation Act were compiled with. Section 20 of the Limitation Act provides that where payment on account of a debt

is made before the expiration of the prescribed period by the person liable to pay the debt, a fresh period of limitation shall be computed form the

time when the payment was made. The proviso to the section requires that an acknowledgement of a payment should appear in the handwriting of,

or in a writing signed by the person making the payment. In this case it is not alleged that the certificate of payment by the decree-holder is signed

by the judgment debtor.

Under O. 21 R. 2 C.P.C., the decree-holder is entitled to certify such payment or adjustment to the court, and it is the duty of the court executing

the decree to record the certificate of payment. If the decree-holder adopts this course, then the petition by the decree-holder to certify such

payments would be a step-in-aid as observed in Narayana Nair Vs. Kunhi Raman Nair, but a payment out of court to the decree-holder and

acknowledgement by him cannot be considered as a step-in-aid. If such a payment certified by the decree-holder but not recorded by the court is

to be relied on by the decree-holder for purposes of limitation, he cannot avail the certificate by himself as a step-in-aid under Art. 182(5) of the

Limitation Act. But he can rely on such payment, if it amounts to an acknowledgement of the payment on account of the debt is in the handwriting

of, or in a writing signed by the person making the payment. Even if the fact of payment is admitted by the judgment debtor in his written statement,

it would not fulfil the conditions under S. 20 of the Limitation Act, and in the absence of an acknowledgement under S. 20 of the Limitation Act,

the payment cannot be availed of for the purpose of limitation.

(3) In the result I agree with the finding of the Court of Small Causes and hold that the decree is barred by limitation and not executable. The

petition is dismissed.

(4) Petition dismissed.