Jalim Chand Patwari Decree-Holder, v. Yusuf Ali Chowdhry Judgment-Debtor .

The Judgment of the Court was as follows:—

Suhrawardy, J.:— This appeal is by the decree-holder against an order of dismissal of his application for execution made by the Court below on the ground that it is barred by limitation. The decree was an instalment decree, the amount of which was made payable in six equal instalments distributed over the months of Kartik and Chaitra of 132-5-1326 and 1327. The first instalment was to begin on the 30th Kartik 1325 corresponding to the 15th November 1918, and it was agreed that on default of payment of any instalment, the whole decretal amount would become immediately payable. The decree-holder alleged that the judgment-debtor paid the first kist partly on the 30th Kartik 1325 and partly on the 1st Pous 1325: the second kist partly on the 30th Chaitra 1325 and partly on the 30th Bysakh 1926: the third kist partly on the 29th Kartik 1326 and partly on the 6th Pous 1326, corresponding to the 21st December 1919 which was the last payment made by the judgment-debtor.

The present application for execution was filed on the 20th January 1922 stating that Rs. 664-5-9 p. had been paid out of Court by the judgment-debtor. In these circumstances the learned District Judge in the Court of Appeal below has held that the application was time-barred. The ground which the learned Judge has given is that the payments made on the Kartik and Pous of 1325 were not certified within three years from the date of payment and as such the Court cannot take cognizance of them. The payments could not be certified on the day the application for execution was filed as being beyond three years from the date of payment and, therefore, it must be held that the whole amount became payable on the 1st Agrayan 1325, corresponding to 16th November 1918, that is, the first day after the first instalment became due. The learned Judge has further held that limitation was not saved under sec. 20 of Limitation Act, as admittedly no entry of payments were made by the person who had made them.

With regard to the first ground on which the Court below has held that the present application for execution was time-barred, the view of the law that an application for certifying payments under Or. 21, r. 2, C.P.C, should be made within three years is supported by the decision in the case of Baley Mahomed Shahy v. Aijanmai . There the learned Judges held that as there is no period of limitation fixed by the Limitation Act for an application by the decree-holder for certifying payments made by the judgment-debtor out of Court, the residuary Art. 181 would apply. This point, however, did not directly arise in that case, and their Lordships were not called upon to decide it on the facts that were before them. In that case the final decree in the mortgage suit was passed on the 16th January 1916. On the 11th August 1919 the decree-holder applied for execution and alleged payment by the judgment-debtor on the 25th October 1917. The payment therefore was within three years before the application for execution was made and, therefore, it was not necessary to consider whether there was any period fixed by law within which the decree-holder should apply for certifying payments out of Court. Though the observations were clearly obiter dicta, coming from the learned Judges who decided that case, they are entitled to great deference, but I must respectfully decline to accede to the proposition. My reason is that Art. 181 applies to an application for which no period of limitation is provided in the schedule to the Indian Limitation Act. Or. 21, r. 2(1) provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part, the decree-holier shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. Under cl. (2) the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. The difference in the language of these two clauses is apparent. In cl. (1) the decree-holder is required only to certify such payment, whereas in cl. (2), the judgment-debtor is required to inform the Court of such payment and also to apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. The word “certify” as used in the two clauses above quoted is not defined in the Code, but has received judicial interpretation. It has been held in a number of cases of this Court, as well as in other Courts, that in order to certify payment it is enough that the decree-holder mentions the fact of such payment in the application for execution of the decree in respect of the balance: Eusuffzenam v. Sanchia (2), Lakhi Narain v. Felamani (3), Pandurang v. Jayya (4) and Muslimani v. Sethua (5). The same view has been adopted by the Patna High Court in the case of Elahi Bux v. Nawab Lal (6). If the view firmly established by these cases and others that followed them is correct, the word “certify” as used in Or. 21, r. 2(1) becomes synonymous with the word “inform” as used in cl. (2) of that order. It is not, therefore, incumbent upon the decree-holder to certify payment by making an application, and if he is not required to make an application it is difficult, to argue that Art. 181 applies. In the case of Baley Mahomed Shahy v. Aijanmai , the learned Judges conceded the correctness of the law as stated above. But they proceeded to consider what period of limitation would be applicable to an application by the decree-holder to record payment. The use of the word “application” in connection with this matter might have misled the learned Judges. There is no case directly on the point in this Court as against the view adopted in the case, Baley Mahomed Shahy v. Aijanmai , but the question came up before the Bombay High Court in the case of Pandurang v. Jayya , where a similar objection was taken and overruled. In that case a decree was passed in 1906 making a certain quantity of paddy on its equivalent sum of money payable by instalments commencing in 1807. It was agreed that if two instalments were not paid the whole decree would be executed at once. The decree-holder filed an application for execution on the 10th September 1917 alleging that the first nine instalments from 1907 to 1915 had been paid to him regularly in January of each year as they fell due, and as two instalments of 1916 and 1917 had not been paid be asked that the decree for the balance should be executed. The judgment-debtor denied having made any payment at all, and as none of the alleged nine instalments had been certified and recorded by the Court, he contended that the execution Court should not take cognisance of those payments and therefore the entire amount fell due on the date of the first default and the execution was barred by limitation. The learned Chief Justice considered the question of limitation and came to the conclusion that there was no time required for the decree-holder certifying payments already made under Or. 21, r. 2, C.P.C The view taken in the case of Lakhi Narain v. Felamani points to the same conclusion. There is no doubt that in that case payments were made within three years of the date of the filing of the application for execution, but the learned Judges observed that if there was no period fixed within which the decree-holder must certify part payment at any time, and if the payment was within time, so as to prevent the decree being barred, the execution could not be said to have been barred.

There is one other case which deserves a passing notice. In the case of Bahubullubh Ray v. Jogesh Chandra Banerjee (7) an instalment decree was passed in 1910, the condition being that in default of payment of one instalment the entire amount was to become recoverable. The decree was put to execution in 1916 and the decree-holder to avoid limitation alleged uncertified payment. The learned Judges remark that it is not proved that any instalment had been paid. They further observe: “The Appellant, the decree-holder, states he can certify the payments made at any time. That is quite true subject, of course, to the ordinary rule of limitation that the certification must take place within such time as is required to save the case from being barred by limitation. He cannot postpone the certification for a long period of years and then say that he will save the decree from being barred by limitation by certifying the payments then. The point that is raised in this case really turns on whether the decree was saved from being barred by reason of these alleged uncertified payments. There is nothing to show that it was.” The last sentence is ambiguous, but if it is read with the previous finding of fact, that it was not proved that any instalment had been paid, the conclusion is perfectly correct. It is also right to say that the certification cannot be postponed indefinitely, for it must be made within three years before execution is applied for to save the decree from limitation under sec. 20, Indian Limitation Act, or on the ground of waiver. The decision is really in support of the view I take of the law. It is worthy of note that one of the Judges' (Fletcher, J.), who decided this case, was a party to the decision in the case of Lakhi Narain v. Felamani . To my mind cl. (3) of Or. 21, r. 22 presents no difficulty, as certification of payments may be made by the decree-holder by stating them in his application for execution.

We are, therefore, clearly of opinion that Art. 181 does not apply to the present case and that the decree-holder is entitled to prove the payments alleged by him as made in Kartik 1325 and Pous 1325 and subsequent payments.

The next question that arises for consideration on the findings of the learned Judge is whether the application for execution is barred under sec. 20 of the Limitation Act. The last payment alleged to have been made by the judgment-debtor on the 6th Pous 1325, corresponding to the 21st December 1919, was clearly within three years of the date of the application for execution. It is not the decree-holder's case that this payment was entered in a way so as to bring it within sec. 20 of the Indian Limitation Act. But his submission is that the decree is an instalment decree, and that though it was provided therein that in default of one instalment the whole decretal amount would be recoverable, the right which accrued to him from time to time from non-payment of any instalment was waived by receipt of default instalments which the judgment-debtor had neglected to pay in time, and hence his right to execute the decree accrued from the date of default of 1326 Chait. In support of this argument reliance has been placed upon the case of Surendra Nath v. Rishikesh Law (8). The principle of the law of limitation as laid down in Art. 75 of the Limitation Act has been applied to the case of instalment decrees and it must now be taken to be well-settled that waiver being allowed under cl. 7 of Art. 182, Limitation Act, time runs from the date of the actual default. See the case of Sital Chandra v. Hyder Mollah (9). If the Plaintiff's allegations are correct, he had received payment of the kists for Kartik and Chaitra 1325 and of the Kartik kist of 1326. The next kid would be due in Chait 1326 (April 1920). Whether the period is counted from the end of Chaitra (15th April 1920) or from the last payment (21st Dec. 1919) when the decree-holder exercised his right of waiver, the present application is clearly within, time. We, therefore, hold that the view taken by the Courts below, that the decree-holder's application is barred by limitation, is wrong and this appeal must be allowed.

The result is that this appeal succeeds, the order of the Courts below dismissing the decree-holder's application for execution must be set aside and the case must go back to the Court of first instance for trial of the question of payment or such other questions that may arise in the case.

Costs will abide the result.

We assess the hearing-fee in this Court at two gold mohurs.

Cuming, J.:— I agree.

S.C.M