Dalal and Pullan, JJ.:— It has been found by the courts below that this application for a final-decree is barred by time, as it has been made more than three years after the passing of the preliminary decree. The plaintiff sought to bring his application within time by proving a payment by the judgement-debtor within three years. A single Judge of this Court has referred the case to a Bench, holding that this is a matter of some importance and there is no direct authority upon it.
There is no question that article 181 of the Limitation Act applies to the case, and that, therefore, an application for final decree must be made within three years of the preliminary decree, unless the period can be extended. The argument addressed to us on behalf of the appellant is that section 20 of the Limitation Act lays down that where part of the principal of a debt is paid before the expiration of the prescribed period, a fresh period of limitation shall be computed from the time when the payment was made; and that as debt includes money payable under a decree, the payment alleged to have been made by the judgement-debtor in this case gives rise to a fresh period of limitation for an application by the decree-holder for a final decree. We are not prepared to follow the lower appellate court in its finding that “decree” for the purposes of section 20 of the Limitation Act means only a final decree capable of execution and not a preliminary decree for sale. On the contrary we are of opinion that such a preliminary decree constitutes a debt payable by the judgement-debtor. We are also of opinion that time may be extended for an application for a final decree under either section 19 or section 20 of the Limitation Act. But the former of these sections requires a written acknowledgment of liability and the latter demands that the fact of payment should appear in the handwriting of the person making the same. In the case reported in Subbalakshmi Ammal v. Ramanujam Chetty it was held that an application made by the judgement-debtor for the adjournment of the sale gave a fresh starting point for the decree-holder's subsequent application for a final decree. We see no reason to differ from the opinion expressed by the Madras High Court, but that ruling could only be relevant to the present case if the payment alleged to have been made within three years of the filing of this application had been attested by some, writing by the hand of the person making the payment. In the present case no such allegation is made by the plaintiff, and the fact of the payment is denied by the defendant.
In our opinion the payment alleged to have been made on the 8th of March, 1920, does not extend the period of limitation for making an application for a final decree. The application, therefore, was barred by time, and this appeal must fail.
We dismiss the appeal with costs.
Appeal dismissed.