Dhavle, J.:— This is an appeal by a decree-holder from an order of the Subordinate Judge of Ranchi, upholding the judgment-debtor's objection that the application for execution made by the former was barred by time and accordingly dismissing that application.
The appellant obtained a money decree for Rs. 7,056 and odd against the objector, respondent's father, on the 26th of June, 1936. He applied for execution of this decree on the 21st of May, 1940, and his contention was that this application was in time because on the 15th of December, 1937, the original judgment-debtor had made a part payment of Rs. 1,600. The lower Court has accepted the evidence given on behalf of the decree-holder in support of this payment, and has found that this payment exceeded the interest due up to that time, but that there was no proof by the decree-holder of how he bad appropriated the payment, nor any acknowledgment of the payment in the handwriting of or in a writing signed by the person who had made it. The payment, therefore, did not give rise to a fresh period of limitation under section 20 of the Limitation Act; and following the Full Bench decision in Amarkrishna Chaudhuri v. Jagatbandhu Biswas, the learned Subordinate Judge held that the decree-holder's certification of the payment in his execution petition was not a step-in-aid of execution. The learned advocate for the appellant has drawn attention to Sonya Bisoi v. Ananda Padhano, which was also referred to below, but it does not seem that anything was said in that case which can help the appellant. What was decided in that case was that it was open to the decree-holder, even after an execution petition of 1934, to prove a payment made by some of the judgment-debtors in 1929, which was supported by a receipt written by them and which saved the decree-holder's previous execution petition of 1932 from the time bar. This view was in accordance with the decision in Elahi Bux… v. Nawab Lall…., the case of an instalment decree with the usual provision for default. Execution was applied for in that case on the 27th of September, 1917, on the footing that the judgment-debtor had only defaulted in paying the instalment fixed for the 11th of April, 1915. The judgment-debtor, however, denied paying an earlier instalment that was due on the 11th of April, 1914, and contended that it was not open to the decree-holder to certify the alleged payment of the 11th of April, 1914, more than three years afterwards as he had done by his execution petition itself. This contention was overruled on the ground that no period of limitation is prescribed for certification by the decree-holder, and the learned Judges held that it is open to the decree-holder to make the certificate at any time after the alleged payment. There is nothing in this decision or in Sonya Bisoi's case in support of the contention that certification by the decree-holder is a step-in-aid of execution, or will by itself operate to save limitation. The learned advocate has cited Maung Law Sun v. Maung Po Thein, in which a single sitting Judge of the Rangoon High Court held upon certain Calcutta authorities that “an application to certify is a step-in-aid of execution” and that such an application may be made by the decree-holder under Article 181 of the Limitation Act, at any time within three years from the dates of payments if made by the judgment-debtor in time, and will afford the decree-holder a fresh starting point for limitation within the meaning of Article 182(5) of the Limitation Act. This view, however, was held by two learned Judges of the same High Court in Maung Tun Hlaing v. U. Aung Gyaw to be “no longer good in the face of the recent decision of their Lordships of the Privy Council in Raja Shri Prakash Singh v. Allahabad Bank, Limited.” The old view that certification by the decree-holder is a step-in-aid of execution and provides a fresh starting point for limitation was overruled for a similar reason by the Full Bench in Amarkrishna's case (already referred to), which was followed in Adya Prasad Singh v. Lal Girjesh Bahadur. President, Union Board, Pentapadu v. Sreemath Thirumala Venkata Srinivasacharyulu Ayyavarlu is a Madras decision in which the same old view was given up in view of the decision in Raja Shri Prakash Singh's case, and, so far as I am aware, no Court has since Ram Shri Prakash's case regarded certification by the decree-holder as a step-in-aid of execution giving rise to a fresh period of limitation. The learned advocate has not brought to our notice any decision, new or old, of this Court in which certification by the decree-holder was itself regarded as a step-in-aid of execution, though other Courts have not always regarded “any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of the execution of the decree” as a step-in-aid of execution, as was done in this Court in Sheo Sahay v. Jamuna Prasad Singh*, nor have they always considered it unnecessary, as was done in Jagdeo Narain Singh v. Rani Bhubaneshwari Kuer, in order to attract the operation of clause (5) of Article 182 of the Limitation Act, that the action taken by the decree-holder should be taken in the course of execution proceedings actually pending. The view that certification by the decree-holder is a step-in-aid of execution seems to have started with Tarini Das Bandyopadhya v. Bishtoo Lal Mukhopadaya, where it was rested on the ground that the judgment-creditor certifies in consequence of an arrangement as to payment between him and the judgment-debtor, because if he had not certified, the judgment-debtor could under the law compel him to do so, and that the effect of the certificate is to satisfy the decree so far as the sum certified is concerned. This was followed by a Full Bench of the Allahabad High Court in Sujan Singh v. Hira Singh in which Mahmood, J. considered that in certifying partial satisfaction under section 258 of the Civil Procedure Code [now Order XXI, rule 2(1)] the decree-holder “is taking a step by which he asserts enforcement of his decree in the exercise of those powers which are vested in him because he is a decree-holder. But even payments out of Court, such as may be made by the judgment-debtor to the decree-holder under Order XXI, rule 1(1)(b), do not per se advance execution, but operate—at any rate, primarily—to reduce the judgment-debtor's liability in execution, and this too, only if they are taken out of the bar imposed by Order XXI, rule 2(3), that is to say, if they are certified by the decree-holder under clause (1) of this rule, or if action is taken by the judgment-debtor under clause (2) of the same rule to have them “recorded as certified”. It is only in certain special circumstances that such payments operate to extend the ordinary period of limitation for execution. In instalment decrees, for instance, where the decree-holder is to take out execution only after one or more defaults, the payment of each instalment will postpone the starting point for limitation. Payments coming within section 20 of the Limitation Act will also entitle the decree-holder to a fresh period of limitation. But even in such cases Order XXI, rule 2(3), will apply, that is to say, the decree-holder will derive no advantage from such payments as regards limitation unless he certifies them to the executing Court. As was observed in Raja Shri Prakash Singh's case, the rules contemplate that the decree-holder, to whom a payment has been made by the judgment-debtor out of Court, should certify such payment to the Court within a reasonable time in order that it might be recorded by the Court, and the judgment-debtor is protected by the provision that in the event of the decree-holder failing to certify the payment to the Court, the judgment-debtor may apply to the Court for a notice to issue to the judgment-creditor to show cause why the payment should not be recorded as certified, provision being made by Article 174 of the Limitation Act that such application by the judgment-debtor must be made within 90 days of the time when payment was made; in view of these provisions, apparently, it was not thought necessary to provide any specific time within which the judgment-creditor must certify the payment under Order XXI, rule 2(1). section 20 of the Limitation Act which entitles the decree-holder to a fresh period of limitation from payments made by the judgment-debtor lays down several conditions for the protection of the judgment-debtor, and in particular, requires that an acknowledgment of such payment should appear in the hand-writing of the judgment-debtor or should be signed by him. This makes it highly improbable that the Legislature should have intended to let the decree-holder have a fresh period of limitation from his certification, while laying down no period of limitation at all for his doing so. The object of certification appears to have been the benefit of the judgment-debtor; as Peacock, C.J said in the Full Bench case of Fukeer Chand Bose v. Muddun Mohun Ghose, “if the plaintiff comes in at any time and certifies that he has been paid, he must be bound by it” and certification by the decree-holder or its equivalent when the judgment-debtor moves the court under clause (2) of Order XXI, rule 2, seems to be no more than the sine qua non for the recognition by the Court executing the decree of the payment in question. But even apart from this consideration, it can no longer be said, in view of the decision in Raja Shri Prakash Singh's case, that certification by the decree-holder involves any application by him for which any limitation is prescribed, while it is scarcely conceivable that an application for which no limitation is prescribed should come within Article 182(5) of the Limitation Act. As Rankin, C.J said in Amarkrishna Chaudhuri's case, the intention of this clause is “that if within the first period of three years (after a decree under execution) an application is made to the Court for execution or to take some step-in-aid of execution, another period of three years will become available (to the decree-holder): and if within that time another such application is made, then a further three years will become available, and so on. Each timely and proper application is to have the effect of an extension for three more years. It is to introduce an irrational surd into the process to attach this consequence to an act of the decree-holder which need not be done in any given time”.
The result is that, in my opinion, the lower Court was right in holding that the appellant's execution petition was barred by time: the payment of the 15th of December, 1937, did not comply with the requirements of section 20 of the Limitation Act, and therefore, did not extend limitation, though the Court was bound to record it on certification by the decree-holder even after the expiry of three years from the decree but the certification of May, 1940, had no effect whatsoever in saving limitation. I would accordingly dismiss this appeal with costs.
Harries, C.J:— I agree.
S.A.K
Appeal dismissed.