T.K. Peramanayagam Pillai vs Raman Chettiar

Madhavan Nair, J.—The judgment-debtor is the appellant. This Civil Miscellaneous Second Appeal arises out of an application filed by the

decree-holder under Order 21, Rule 38, Civil Procedure Code, to execute the decree in O.S. No. 175 of 1916 (District Munsif''s Court,

Tinnevelly) by arrest of the appellant. The question for decision is whether the decree sought to be executed is barred by limitation.

The date of the decree is 11th December, 1917. The application for execution previous to the present application (Exhibit E) was made on the

12th April, 1922. That was in time when it was filed. The present application E.P. No. 257 of 1926 was made on the 21st April, 1926. Prima

facie it is barred by limitaton as having been1'' made more than three years from the date of the last application. But the respondent decree-holder

contended that it was saved from the bar of limitation u/s 19 of the Limitation Act by an acknowledgment made by the judgment-debtor within

three years from the date of the last execution application and that the present execution application has been filed within three years from the date

of the acknowledgment; and that it is therefore within time. This plea was accepted by both the Lower Courts.

The facts relating to the acknowledgment are these. The judgment-debtor became an insolvent. He filed a schedule of assets and liabilities

before the Official Receiver. This schedule is Ex. III. It is not disputed that this contains an acknowledgment of liability. The question is, when was

this acknowledgment made. The date 30th March, 1923, appears on Ex. III, but this has been stroked out. If this is the date of the

acknowledgment then the present application, dated 21st April, 1926, as having been made more than three years from that date, is clearly barred

by limitation. We are not able to say why the date appearing on Ex. III was stroked out. The document does not show when it was actually filed

before the Official Receiver as it does not bear the stamp of his office. It must have been filed before him either on the 31st July, 1923 or some

time after that date. This is inferred from Ex. V, a petition made by the insolvent to the Official Receiver promising to file the list in a week. Ex. V is

dated 31st July, 1923. The District Munsif held that the respondent has admitted the present decree debt either on the 31st July, 1923, or on some

day after that date and that the present application is not barred as it has been made within three years from that date. This decision was upheld by

the learned District Judge.

In this second appeal Mr. Venkatasubramanian for the appellant argues that the acknowledgment should be considered to have been made on

the 30th March, 1923, though that date has been stroked out, that when once the document bears a date it is not open to the parties to show by

oral evidence that it was not written on that date having regard to the prohibition contained in Clause (2) of Section 19 of the Limitation Act, and

that in any event the Lower Courts are wrong in calculating the period for the present application from the date of ""filing"" of the acknowledgment

petition, as under law the time from which they should calculate it is the time when it was made and not the time when the petition containing it was

filed; or in other words, that the filing of the petition has nothing to do with the time zvhen the acknowledgment was made. The first two arguments

are supported by a decision in Sayad Gulamali v. Miyabhat ILR (1901) 26 Bom. 128, which is to this effect:

Where a written acknowledgment bears a date which has been altered, oral evidence to prove the date is inadmissible u/s 19, para. 2 of the Indian

Limitation Act, 1877.

Logically it must follow from this decision that if by mistake a wrong date is inserted in a document, oral evidence is inadmissible to prove the

mistake. An interpretation of Clause (2) of Section 19 leading to this position seems to me hardly justifiable. Having regard to the fact that the date

of the document containing the acknowledgment has been scored out, I think that for the purposes of Clause (2) of Section 19 we may hold that

the writing containing the acknowledgment is undated, and then evidence may be given as to the correct date of the acknowledgment. Though a

document with a date stroked out by the party may be said to bear a date strictly speaking, and therefore not be undated, having regard to the

obvious fact that the parties by striking it out have shown that it is not to be the date of the document, I think it can hardly be correct to calculate

the time of acknowledgment from that date as the true date. In this case, as pointed out by Mr. Vinayaka Rao for the respondent it is not quite

clear whether the Lower Court''s conclusion regarding the time of acknowledgment is based so much on the oral evidence as on an inference from

Ex. V. Though oral evidence was adduced in the case, the conclusion that Ex. III must be considered to have been filed on or after the 31st July,

1923, is solely based on the inference from Ex. V. If this view can be held to be correct as I think it may well be, then the occasion for the

application of Sayad Gulamali v. Miyabhai ILR (1901) 26 128 does not arise as the true date can be proved by other than oral evidence.

However, it is not necessary to discuss this aspect of the question any further.

The last argument of Mr. Venkatasubramanian will be found to be without any substance if the finding of the Lower, Courts is properly

understood. It is true that the learned Judges have calculated the period of limitation for the present application from the date of the filing of Ex. III.

But they have done so not because that the date of the filing has anything to do with the question u/s 19 of the Limitation Act but because they

consider that acknowledgment in the absence of other evidence must be held to have been made when the document was filed; that is all. This is

clear from the words vised by the District Munsif. He says:

It is clear from Ex. III that the respondent has admitted the present decree debt either on the 31st July, 1923 or on some day after that date"" (The

italics are mine)

and the learned District Judge has confirmed this opinion of the learned Distinct Munsif. There is therefore no reason for calling for a fresh finding

as to the time when the decree debt was acknowledged by the judgment-debtor.

For the above reasons this Civil Miscellaneous Second Appeal is dismissed with costs.