Sale, J.:— This is a suit brought by the Plaintiff as the Receiver appointed by this Court in Suit No. 377 of 1897 by way of equitable execution to recover from the Defendant a debt alleged to be due from him to one Jogeshwar Roy whom the Defendant employed as a builder to do certain work for him.

Two grounds of objection have been taken to the suit being maintained in its present form and in dealing with them it will be necessary to examine with some minuteness the special circumstances material to the case. The first objection is as to the power or authority of the Plaintiff to maintain this suit, and the second ground of defence is limitation. It appears that in 1897 a suit was instituted by Giridhari Lal Dhananiah against the builder Jogeshwar Roy to recover Rs. 3,000 due on a promissory note executed by Jogeshwar Roy in favour of the Plaintiff Giridhari Lal Dhananiah and in the plaint the Plaintiff alleged that as security for the amount due under the promissory note the Defendant had hypothecated the debt due to him by the present Defendant Raj Narain Mitter, and the Plaintiff in that suit claimed that the amount due to him under the promissory note should be declared by the decree to be a charge upon the debt. The debt from Mr. Mitter is alleged in the plaint to be due in respect of an agreement of the 26th August, 1895 and the date of the promissory note is 25th October, 1895. A decree was made in this suit substantially in the terms of the prayer of the plaint and the amount of the debt alleged by the Plaintiff to be due under the agreement of the 26th August, 1895 was alleged in the plaint to be a sum of Rs. 11,500. The Plaintiff Giridhari Lal Dhananiah then in order to realize the debt due from the Defendant proceeded to attach the money in the hands of Mr. Mitter sought to be charged by him but through some mistake made in the office of the attorneys of the Plaintiff Giridhari Lal Dhananiah, the money sought to be attached was wrongly described in the tabular statement as money due under the agreement of the 25th October, 1895, whereas it should have been described as money due under the ageement of the 26th August, 1895. In the column relating to the mode in which the assistance of the Court is sought, the Plaintiff asks for the assistance of the Court to be rendered in this manner:— “By attachment of the monies in the hands of R. Mitter, Barrister-at-Law, belonging to the Defendant Jogeshwar Roy for work done and materials supplied at the premises No. 15/3, Gopal Lall Tagore's Road, Baranagore, under an agreement made between the said R. Mitter and the Defendant Jogeshwar Roy and dated the 25th day of October 1895 upon which the decretal amount forms a charge under the decree in this suit.” The Court acting upon the representations contained in Plaintiff's tabular statement attached the money alleged to be due under the agreement of the 25th October, 1895 by prohibitory order on Mr. Mitter directing him not to part with the moneys due to Jogeshwar Roy under that agreement. Subsequently and pursuant to the order of attachment, the Court was applied to and did, under secs. 268 and 503 of the Code and by way of equitable execution, appoint the present Plaintiff as Receiver to recover by suit the attached money in the hands of Mr. Mitter. It is not necessary to refer further to the order appointing the Plaintiff Receiver. Suffice it to say that the order of appointment authorized the Receiver to sue for and recover the attached debt. Pursuant to the authority contained in the order of appointment the Plaintiff filed the present suit on the 14th July, 1899. In the paragraphs of the plaint relating to the order of appointment and the agreement under which the money is alleged to be due, the recitals are full of mistakes. The mistake as to the date of the agreement does not appear to have been discovered until a late stage in the proceedings in this suit. In a further written statement filed by the Defendant the defence was taken that the Plaintiff had no authority to maintain this suit by reason of the fact that the money sought to be recovered was not the money which had been attached in the hands of the Defendant. Subsequently to the filing of the further written statement an application was made to me in Chambers by the attorney for the Plaintiff upon a petition for leave to amend the tabular statement and prohibitory order. This application was made in the suit in which Giridhari Lal Dhananiah was Plaintiff. I declined to make any order on that application. I thought the amendment could not be made at that stage, and I directed that the application should be mentioned in the present suit when the Defendant would have an opportunity of being heard. The matter has now been fully discussed and there can be no question that the mistake—for such it undoubtedly was,—originated in the application for execution made by the Plaintiff in the earlier suit.

The Court is always unwilling to allow a mistake made inadvertently to operate pre-judicially against a party, and accordingly I have carefully considered the question now raised with a view to see whether it would be possible to give Plaintiff leave to amend the present plaint and for that purpose whether I ought not to adjourn the case so as to enable the Plaintiff to obtain a fresh order of attachment so as to make it applicable to the money due under the agreement of the 26th August, 1895. I am clearly of opinion that no such order for amendment can be made in this case. The matters complained of are not such as can be set right by amendment. The question is one which goes to the root of the authority of the Plaintiff to maintain this suit, and if I were to make an order for amendment of the order for attachment of the money due to Jogeshwar Roy under the agreement of the 26th August, 1895, the amendment would operate only as a new order of attachment and a new order for appointment of Receiver and such orders would only operate from the date on which they were made. They could not therefore operate as the basis or authority for the present suit. But another view of the question has been presented to the Court. It is this that there is no necessity to make a new order of attachment. I am invited to read the existing order as if it were in reality applicable to the right agreement notwithstanding the fact that the agreement is wrongly described as the agreement of the 25th October and reliance is placed on the case of Way v. Hearn where in construing an agreement ??? though clear in its terms, was not ??? to existing facts, the Court ??? to be given so as to ??? facts were to which ??? that the agreement ??? is embodied ??? Act, but it ??? this principle cannot invoked to assist the Plaintiff in the present suit. In this case the Court has not to find the intention of the parties. Here we have to do with an order of Court which is the sole authority of the Plaintiff to maintain the suit, and it seems that the intention of the parties is immaterial to the question as to the title or authority of the Plaintiff to maintain this suit which must solely depend upon the order appointing the Receiver. However regretable the mistake may be under which the prohibitory order was made it is impossible, I think, by any course of construction, to regard the order as applying to anything other than the subject-matter specified by the order itself. The effect of the mistake is to make the prohibitory order a nullity, and it follows that the order for the appointment of the Plaintiff as Receiver to recover the money alleged to be due under an agreement which does not exist, must be a nullity also. That being so, there is nothing to prevent the Plaintiff from obtaining a new order for attachment and a new order for the appointment of a Receiver.

But supposing this objection could be surmounted it appears to me that there is another grave difficulty in the way of the Plaintiff created by the defence of limitation set up. The money that the Plaintiff seeks to recover is claimed in respect of work done under the agreement of the 26th August, 1895. It is admitted that certain extra and additional work was done which was outside the agreement mentioned, which work is not the subject of the present suit which is confined to work done under the agreement and not otherwise. By a clause in the agreement it is provided that work done there under must be finished before the 1st Aughran 1302 corresponding with the 16th November, 1895, and it being alleged that the work under the agreement was duly executed and completed, the suit on the face of the plaint would appear to be barred unless some special case is shown extending the period of limitation.

In the last paragraph of the plaint the special case is shown which is relied upon as an answer to the plea of limitation which would otherwise be maintainable. The paragraph runs thus:—“The Plaintiff's cause of action arose within the jurisdiction of this Hon'ble Court and is within the period prescribed by the Statute of Limitation as the Defendant acknowledged in a writing the debt of the 18th day of June 1898.” Sec. 50 of the Code of Civil Procedure provides that the plaint must show the ground upon which exemption in respect of the law of limitation is claimed. The words are:—“If the cause of action arose beyond the period ordinarily allowed by any law for instituting the suit, the plaint must show the ground upon which exemption from such law is claimed,” and there is no doubt that under that provision of the law the express acknowledgment relied upon was set out in the 12th paragraph of the plaint. Now the acknowledgment referred to in the 12th paragraph of the plaint is contained in a certain writing by the Defendant which was made upon a receipt relating to a letter and bill for works and repairs done to the Defendant's house at Baranagore. The receipt is dated the 9th June, 1898 and the writing there on by the Defendant is in these terms:— “The bill glanced over is incorrect, large amounts have been wrongly introduced. I will first have the work examined, although I know that the whole of the work is not yet finished. Then I will examine the estimates and after deducting what has to be deducted 1 I will see what is due.” Now it has been contended that the writing is an acknowledgment of liability within the meaning I of sec. 19 of the Limitation Act; an acknowledgment to fall within this section must be an acknowledgment of liability in respect of the right claimed. Now it is difficult to say that the Defendant intended in any sense to admit liability in respect of any portion of the amount of the bill. He had paid large sums to the builder and be was even claiming the right to exact a penalty for the non-completion of the work within the contract period. It seems to me that the writing is so expressed as to avoid any admission of liability. The Defendant does not, I think, admit that anything is due on the bill. What he says is, he will examine the bill and deduct what has to be deducted and then he will see what the result is. But it is said it is sufficient if the acknowledgment amounts to an admission of an open account, because if it is an acknowledgment of an unsettled account ??? promise is implied from such ??? to pay what may ??? account. There is ??? acknowledgment ??? character ??? English law ??? the English ??? suit is based ??? but upon the implied promise to pay. The law is different in this country and an acknowledgment to save limitation in respect of a debt must be an express acknowledgment of liability in respect of the debt claimed or of some part of it. The right claimed in this case was a debt, not a right to an account based upon a mutual open and current account. Reference has been made to the decision of this Court in the case of W.R Fink v. Buldeo Dass. There is no doubt an expression in the judgment of the learned Judge who decided that case which would seem to show that in the opinion of the learned Judge the law in England was the same as the law in this country; but the question did not, strictly speaking, arise. The matter really in issue was whether certain letters written by the Defendant to the Plaintiff did contain an acknowledgment of debt. In this respect the decision to which I have referred is distinguishable from the present case; nor does it appear that the Judge's attention was directed to the decisions of this Court under sec. 19 of the Limitation Act, and to the distinction existing between the law of limitation applicable in England and that in force in this country,—while the law in this country does not require that a promise to pay should be made out to avoid limitation, it is necessary when the right claimed is a debt—that an unequivocal and unqualified admission of the debt or a part of it or of the subsisting relationship of debtor and creditor should be established to satisfy sec. 19 of the Limitation Act, see Venkata v. Parthasaradhi. It seems to me therefore that the acknowledgment relied on in the plaint as furnishing a new period of limitation is not an acknowledgment of that express and unambiguous character to satisfy sec. 19 of the Limitation Act. But apart from the ground relied on in the plaint, it has been sought to avoid limitation in two other ways. First, it is said there is another acknowledgment not made by the Defendant himself but by an agent appointed by him to supervise the work done by Jogeshwar Roy. This acknowledgment is not referred to in the plaint at all; and then in the alternative it is argued, as the second mode of avoiding limitation that no acknowledgment of liability is necessary as the work, the subject of the suit, was not completed, as the plaint implies, in November 1895, but continued for some time after wards. This raises the question whether the Plaintiff can be allowed to take advantage of any express ground of exemption from the ordinary law of limitation, which has not been pleaded in the plaint, having regard to the terms of sec. 50 of the Civil Procedure Code.

If it had been shown that any reasonable ground existed for giving the Plaintiff an opportunity for proving a later acknowledgment of liability by the Defendant or his agent, and had I been asked to do so, I should probably have given the Plaintiff leave to amend his plaint so as to enable him to plead and prove the new ground of exemption.

I have heard the evidence of Jogeshwar Roy the builder, and of the engineer who was engaged by Mr. Mitter to supervise the work and who, it is alleged, made an acknowledgment of liability which the Plaintiff now seeks to take advantage of. The evidence of Hari Charan Pal, the engineer, was of a very unsatisfactory character. The shuffling manner in which be gave his evidence makes it impossible to place any reliance upon it at all, and it is quite impossible to say when, according to this witness, it was that the work agreed to be done under the agreement of the 26th August was completed, or whether it was not completed as the plaint implies at or before November 1895. Moreover it appears that the acknowledgment relied on as being given by this witness was in reality given by him not as agent of the Defendant but under circumstances which show that the object was to give an unfair advantage to Jogeshwar Roy and to prejudice the Defendant. In no sense can it be said that the certificate relied on by the Plaintiff is a genuine certificate, and moreover at the time the so-called certificate was given, the witness was obliged to admit that he had ceased to be employed by the Defendant. I am satisfied he was acting in collusion with Jogeshwar Roy at the time when the certificate sought to be relied on was granted. Jogeshwar Roy has been called and no doubt states the work under the agreement of the 26th August, 1895 was not done within the period mentioned in the contract, but he is unable to fix the time when the work to be done under the agreement was in fact completed.

It appears to me that the case attempted to be made by Jogeshwar Roy and Hari Charan Pal as regards the non-completion of the work is an afterthought, it is not the case made originally in the plaint. The plaint was framed in a very different way and there is no doubt it was so framed deliberately in order to avoid payment of the penalty which Mr. Mitter was claiming for non-completion of the work.

The Plaintiff ought not to be allowed to put forward a new case, inconsistent with the plaint, to enable him to avoid limitation.

That being so, it seems to me that the plea of limitation has also been established. I must therefore dismiss the suit with costs.

Messrs Leslie and Hinds, Attorneys for the Plaintiff.

Mr. U.C Dutt, Attorney for the Defendant.

A.N.C

Suit dismissed with costs.