Rowland, J.:— The question for decision is whether an application for execution presented by the respondent was barred by limitation.

Balaram Bhagat on 1st October 1913, mortgaged three properties to Pasupati Banarji respondent no. 1. Subsequently he sold one of the properties to Richha Ram, father of appellant Badri Das. Balaram Bhagat died and his property passed to his grandson Deb Narayan Bhagat, respondent no. 2. Pasupati sued on his mortgage impleading Deb Narayan Bhagat and Richha Ram as defendants and obtained preliminary decree on the 17th September, 1920, which was made final on the 2nd August, 1921. His first application to execute the decree was presented on 20th March, 1925, alleging that a payment of Rs. 100 towards interest had been made by Deb Narayan Bhagat on 9th May, 1924, and duly endorsed on the back of the copy of the mortgage decree and that he was entitled to execute his decree against both the judgment-debtors within three years of that payment. Notices were issued to the judgment-debtors but further steps were not taken and the execution was dismissed for default on 29th April, 1925. A second application was presented on 3rd December, 1925, which has led eventually to the present appeal. The execution proceeded to sale of all three properties on 17th March, 1926, they were purchased by the decree-holder Pasupati Banarji, the sale was confirmed on 20th April, 1926, and delivery of possession was taken on 8th September, 1926. Richha Ram on 29th September, 1926, presented two objections: one was under Order XXI, rule 90, for setting aside the sale of the property which was in his hands that was numbered as Miscellaneous Case 94 of 1926 the other was under section 47, Code of Civil Procedure, and the contention was that the execution commenced on 20th March, 1925, was beyond time. That objection was numbered as Miscellaneous Case 93 of 1926 and has given rise to the present appeal. It was at first dismissed by the Munsif on the ground that Richha Ram not having taken an objection in the former execution case could not raise this point now, being barred by the principle of res judicata. The District Judge dismissed an appeal, from that decision; but on second appeal the case was remanded for disposal according to law after coming to a finding on the facts. It has now been held that the payment of Rs. 100 was in fact made on 9th May, 1924, and the District Judge has held on the authority of Raja Rajtilak Narayan Suri Roy v. Mafizaddi Tapadar that the payment was effective to give a fresh start to limitation not only against the successor of the mortgagor who made the payment but also against the purchaser of the equity of redemption, in lot 1 of the property. During the above proceedings Richha Ram, the purchaser of the equity of redemption, died and is represented now by his son Badri Das, the appellant.

In appeal the contention is that the payment kept the debt alive only against the person making it and, therefore, the decree was only capable of execution against the property in the hands of Deb Narayan Bhagat. Reliance is placed on Jogesh Chandra Saha v. Monindra Narain Chakravarty and on Sarah Nath Das v. Top Ojha. We do not understand those decisions as laying down any general proposition that a payment by one debtor can only keep alive the liability as against himself. So wide a proposition would be contrary to principles which are too well established to be now called in question. In Krishna Chandra Saha v. Bhairab Chandra Saha where a payment had been made by the mortgagor and it was contended that this did not give a fresh start to limitation as against a subsequent transferee of the equity of redemption, Maclean, C.J rejected that contention following the principle of Chinnery v. Evans and observing “that a mortgagee cannot, by the act of the parties entitled only to the equity of redemption, be deprived of his right to resort to any estate comprised in his mortgage so long he has not released or given it up and so long as that mortgage is legally kept alive. This decision was followed in Domu Lal Sahu v. Roshan Dobay where Maclean, C.J after quoting from section 20 of the Limitation Act observed that “the words of the section are general and plain, when the legislature intends that a fresh period of limitation is to operate as against certain persons only it says so in distinct terms: see section 18 of the Act. There is nothing in the section to indicate that the extension is only to operate against the person making the payment”. These two decisions were approved by a Division Bench of the Allahabad High Court in Rosan Lal v. Kanhaiya Lal where it was held that the view taken was in agreement with the observations of Lord Hobhouse in Lewin v. Wilson pointing out the distinction between acknowledgment and payment, “payment is certain to be made only by those who have some duty or interest to pay. As regards the recipient, so long as he is paid according to the intention of the contracting parties, he is in full enjoyment of his bargain and is not put upon any further assertion of his rights”. In the Madras High Court in Askaram Sowkar v. Venkataswami Naidu Wallis, C.J and Ramesam, J. dealt with the case of a payment made by the purchaser of the equity of redemption and held that such payment extended limitation not only against the person making it but also against the original mortgagors, citing observations of Lord Westbury in Chinnery v. Evans. In Sarada Charan Chakravarty v. Durgaram De Sinha which was a case turning on the question whether a mortgage debt incurred by the father of the defendants was kept alive by a payment made by one of them, it was said “the entire equity of redemption descended to the sons of the mortgagor they were jointly liable for the debt, not as co-mortgagors, but as representing the sole mortgagor, their father. There is nothing in section 20 of the Limitation Act to warrant the belief that the extended period of limitation is intended to operate only against the persons making the payment”. In the Madras High Court, again, it was held in Velayudam Pillai v. Vaithyalingam Pillai that section 20 requires that the payer should be one liable to pay the debt and provides that the result of trfe payment would be to give to the creditor a fresh period of limitation from the date of the payment. It does not restrict the benefit accruing to the creditor with respect to his debt to his remedy against the payer alone. According to the language of the section the debt being kept alive, the result must be to make it enforceable against any one liable for it”. Raja Rajtilak Narayan Suri Roy v. Mafizaddi Topdar follows the decisions in Krishna Chandra Saha v. Bhairab Chandra Sah and Domu Lal Sdhu v. Roshan Dobay payment by a mortgagor keeps a mortgage debt alive against the purchaser of the equity of redemption. This decision was followed in Achola Sundari Debi v. Doman Sundar Debi. It was again asserted that “the person liable to pay” in section 20 of the Limitation Act does not mean the entire body of persons liable to pay the debt but any individual who would be liable for the whole debt; and this decision was approved in the Allahabad High Court in Ibrahim v. Jagdish Prasad.

I now turn to consider the cases in which this principle has not been applied. In Gopal Daji Sathe v. Gopal bin Sonu Bait Jenkins, C.J, dealing with the question whether payment of interest by a debtor would give a fresh start for limitation against his surety also, answered the question in the negative holding that the surety's debt was not the same debt as the debt of his principal and that the principal was not the person liable to pay the debt of the surety. The expressions used imply that had it been otherwise, payment would have been available to the decree-holder as an answer to a plea of limitation. In Brajendra Kishore Roy Chowdhury v. Hindustan Co-operative Insurance Society, Limited Sanderson, C.J and Mukharji, J. followed the above decision drawing the same distinction between the debt of the surety and the debt of the principal debtor. Reference was made to Domu Lal Sahu v. Roshan Dobay which was distinguished on the ground that in that case “there had been only one debt in question, namely, the mortgage debt; and inasmuch as the mortgagor had made payments to the mortgagee, it was held that such payments affected not only the mortgagor but the respondent who was the purchaser of the equity of redemption and who of course claimed through the mortgagor”. In the case before him, there being two distinct debts, Sanderson, C.J held that the fresh period of limitation created under section 20 by the payment of interest by the principal debtor could be only in, respect of the debt upon which the interest was paid, Jogesh Chandra Sahu v. Mohindra Narain Chakravarty was a decision regarding persons who had jointly borrowed money on a simple bond and came as joint contractors, within the terms of section 21(2) of the Limitation Act. It followed that payment by one of those persons did not give a new start for limitation as against the other. We have been referred to two Madras decisions—Muthu Chettiar v. Muhammad Hussain and Thayammal v. Muthukumaraswami. Both these were cases of mortgages originally entered into by two or more persons and falling within the terms of section 21(2) of the Limitation Act, joint mortgagors being treated as co-contractors within the meaning of that sub-section. In none of these does the decision (apart from obiter dicta) involve a denial of the principle that payment by one debtor may affect limitation against others. In Ahsan-ul-lah v. Dakhini Dei Blair and Banarji, JJ. said, “On general principles one debtor by acknowledging a debt or making a part payment otherwise than an agent of other debtors cannot keep alive the right of creditors against those debtors”. No authority was cited in support of this view. This decision was approved in the Calcutta High Court in Chandra Kanta Dhar v. Ramdin Poddar—a case of acknowledgment and not of payment—in which it had been held by the lower Court that the acknowledgment was effectual against the person making it; and not against his co-mortgagor and execution had been allowed to proceed against the defendant who made the acknowledgment and not against others. The only question to be decided by the High Court was whether the debtor who had made the acknowledgment could repudiate liability; and it was held he could not. No question as to the liability of his co-debtors arose. The above Allahabad decision has not, as I have shown, been followed in more recent cases of the same Court, and, with great respect, I propose not to follow it. Another Calcutta case of Arjun Ram Pal v. Rohima Banu was a decision by a single Judge as to the effect of a payment by one of the co-heirs of the original mortgagor. With great respect, I do not think the learned Judge took a correct view of the law in holding that limitation was only saved as against the person making the payment: Sarada Charan Chakravarty v. Durgaram De Sinha. There remains one decision of the Patna High Court in Sarab Narain Das v. Top Ojha on which special reliance is placed by the appellant as being a decision of this Court. It is necessary therefore to state the facts of that case.

The mortgage in question had been created not by a single mortgagor but by two widows and at the time of the suit both widows were dead. There were five defendants who had succeeded as reversioners to the property on the death of the widows. One of the reversioners had made a payment on account of interest and the question was whether it saved limitation as against himself only or as against all the defendants. It was held that the payment or acknowledgment was binding only on the person who made it. Sarada Charan Chakravarty v. Durgaram De Sinha was distinguished as being a case in which the debtors had inherited an indivisible liability on an indivisible debt whereas in the present case the five reversioners must be regarded as co-mortgagors inasmuch as they had succeeded to the interests of the original mortgagors and held separate and distinct shares in the property. The Patna case was followed in Muthu Chettiar v. Muhammad Hussain above cited. But these decisions seem to be applicable only to cases in which the original contract was entered into by more than one mortgagor. Where the mortgage was entered into by a single mortgagor and subsequently the equity of redemption has passed to his successor, but other parties have acquired an interest in the equity of redemption that fact would not make it a case of co-mortgagors or co-contractors so as to give the parties other than those who made the payment the benefit of section 21(2) of the Limitation Act. In Ibrahim v. Jagdish Prasad Dalal and Pullam, JJ. of the Allahabad High Court declined to follow the Patna decision, the case before them being of a mortgage originally created by a single executant. The distinction is not expressly drawn in the judgment and the headnote is misleading. There was not, I think, any question of co-mortgagors in that case. Be that as it may, the Allahabad High Court had no hesitation in re-affirming the principle that where several persons are interested in the equity of redemption payment by any one of them can keep alive the debt as against all “according to the language of the section the debt being kept alive the result must be to keep it enforceable against any one liable for it”. The cases of Ghasi Khan v. Thakur Kishori Ramauji Moharaj and Achola Sundari Debi v. Doman Sundari Debi went further and applied the same principle even where the original mortgage had been created by two persons. It is not necessary to express any opinion as to the correctness of those decisions which are in conflict with Sarab Narain Das v. Top Ojha; but it seems to emerge clearly from a general view of the authorities cited that though section 20 may not apply to one debtor by reason of a payment made by another debtor in cases where the debts or liabilities are distinct, as in Gopal Daji Sathe v. Gopal bin Sonu Bait and Brajendra Kishore Roy Chowdhury v. Hindustan Co-operative Insurance Society, Ld. and though section 21(2) may apply where a mortgage has been entered into by two or more persons as in Muthu Chettiar v. Muhammad Hussain, Sarah Narain Das v. Top Ojha and Thayammal v. Muthukamaraswami or where two persons jointly execute a simple money; bond, Jogesh Chandra Saha v. Manindra Narayan Chakravarty limitation is saved where the debt is a single debt and the liability is one and indivisible notwithstanding that a part of the property liable for the debt may be in hands other than those of the person making the payment. Such a case falls within section 20 and is not taken out of its operation by section 21(2) of the Act.

I would; therefore, dismiss the appeal with costs to the contesting respondent.

Agarwala, J.:— The question for decision is whether a payment towards interest, due under a mortgage decree, made before the expiry of the period prescribed for the execution of the decree, by a person who has inherited a part of the mortgaged property, is binding on a person who prior to the payment, has purchased another part of the mortgaged property in execution of a money decree, so as to extend the period of limitation for executing the mortgage decree and enabling the decree-holder to proceed against the portion of the property sold in execution of the money decree.

The contention of the decree-holder is that the payment of interest provides him with a fresh starting point for the execution of his decree by reason of the provisions of section 20(1) of the Limitation Act, 1908. The material words of that section are:

“Where interest on a debt is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt, or by his agent duly authorized in his behalf, a fresh period of limitation shall be computed from the time when the payment was made.”

The first question, therefore, in the present case is: who is the person liable to pay the debt within the meaning of section 20(1)? In the case of a debt secured by a mortgage the debt is one although the property pledged as security for its repayment may consist of more than one item and although the various items may belong to more than one person. The liability for a mortgage debt is indivisible and no splitting up of the security avails to split up the liability, unless the mortgage's consents to it. A payment of interest by a mortgagor-judgment-debtor, therefore, is a payment by a person liable to pay the debt. That being so, the next question is: Against what property is the liability enforceable? And the answer to this question is that so long as the mortgage is alive the mortgagee is entitled to enforce it against all or any part of the mortgaged property—Chinnery v. Evans. To my mind the position, thus far, is perfectly clear. But it is contended that if the property against which it is sought to enforce the liability has passed into the hands of another, the latter is not bound by any payment that has been made by a person whom he has not authorized to make the payment, and reliance is placed on sub-section (2) of section 21 of the Limitation Act. Section 21 would be relevant if it were necessary for us to determine whether the payer was or was not the authorized agent of the object of within the meaning of section 19 or 20. That, in my opinion, is not the question required to be determined in cases of the present kind. The only enquiry we are concerned with is: Was the payer a person liable for payment of the debt and, if so, what is the effect of the payment? It is incontrovertible that the payer in this case was liable to pay the debt, and that the payment provided a fresh terminus a quo for its realization. The debt, being alive, is enforceable against every item of the mortgaged property, and but for certain cases which have been cited before us I should have thought the contrary proposition to be unarguable. The first of these cases is Arjun Ram Pal v. Rohima Banu, where it was held that a payment of interest by one of the heirs of a deceased mortgagor did not extend the period of limitation against purchasers from the other heirs. That was a case decided by Coxe, J., sitting singly, in which the learned Judge did not consider himself bound by an observation made by a Division Bench of the same Court in Sarada Char an Chakravarti v. Durga Ram De Sinha to the effect that “there is nothing in section 20 of the Limitation Act to warrant the belief that the extended period of limitation is intended to operate only against the person making the payment”. The decision in Arjun Ram's case was approved in Jogesh Chandra Saha v. Manindra Narayan Chakravarti, which, according to the report, was a case of a “simple money bond”. The learned Judges who decided that case referred to the Division Bench decision of their own Court in Achola Sundari Debi v. Doman Sundari Debi but remarked that in that case, “It is not said in so many words that the period of limitation is extended against co-mortgagors by a payment made by one of them”. If the learned Judges in Achola Sundari's case did not say this in “so many words” their decision nevertheless (depended on this being their view. In fact they said that the proposition that a payment to be effective under section 20 must be made by all the co-mortgagprs together was “a novel one”. The appellant has also relied on the decision in Chandra Kumar Dhar v. Ramdin Poddar. That was a case in which the lower appellate Court had held that an acknowledgment of a debt by one of several joint judgment-debtors saved limitation against the maker of the acknowledgment. The latter appealed to the High Court, and the only question before their Lordships was the effect of the acknowledgment as regards the maker and not its effect against the other judgment-debtors. In Muthu Chettiar v. Muhammad Hussain the Madras High Court held that co-mortgagors are co-contractors within the meaning of section 21(2) and this decision was applied in Thayammal v. A.T Muthukumaraswami Chettiar, a case relied on by the appellant. As I have already indicated, we are not concerned with section 21(2) in the present appeal, but with section 20. The last case on which the appellant relies is a decision of our own Court in Sarab Narain Das v. Top Ojha in which two widows had mortgaged certain lands for legal necessity. The equity of redemption eventually passed to their husbands' reversioners who inherited separate and distinct shares in the property. Their Lordships held that a payment by one of these reversioners did not bind the others. That case is distinguishable from the present on the ground that it was a case in which the mortgage was by two persons and it may be that considerations may arise in such a case different from those which arise in one like the present where the mortgage was executed by one person only. I do not, as at present advised, consider that would be the case, but for the purpose of the present appeal it is sufficient to observe that the mortgage in the present, instance was by a sole mortgagor whose successor was liable for the payment of the debt.

I would, therefore, dismiss this appeal.

Appeal dismissed.