Rankin, C.J:— In this case a decree-holder's application presented on 14th May 1929 for execution of a decree dated 30th January 1922 has been dismissed on the ground of limitation. In June 1925 a previous petition for execution was presented and was dismissed on 12th September 1925. Prima facie therefore execution was barred after 12th September 1928, but the lower appellate Court has held that on 18th July 1928 the judgment-debtor paid Rs. 25 on account of the decree, but that no acknowledgment of the payment appears in the handwriting of or in any writing signed by the judgment-debtor so as to render applicable Section 20 of the Limitation Act.

2. The finding is that the money was sent by the hand of a third person together with a letter which purported to come from the judgment-debtor, but was not in his handwriting or signed by him. In his judgment the learned Subordinate Judge says:

“After making the payment through a third person without his own writing or signature and after duping the unsuspecting amlas of the decree-holder he hastened to take a copy of the register as soon as the ordinary period of limitation was over.”

3. The first point made by the decree-holder on this appeal is that on this view the Subordinate Judge should have applied Section 115 of the Evidence Act, and held that the judgment-debtor was estopped from denying that the letter was in his handwriting or signed by him. In applying this principle so as to get rid of a requirement of the Limitation Act it is very necessary to proceed carefully. I cannot find that any such case was made at the time when evidence was given or in the grounds of appeal to the lower appellate Court or that the particular amla or amlas concerned were called to say that they thought the writing was that of the judgment-debtor and their but for this belief he or they would not have accepted the money or would have applied for execution earlier in respect of the balance. The learned Subordinate Judge says:

“I am inclined to believe that the decree-holder's men did not suspect that the letter was not signed by the judgment-debtor or written at his instance.”

4. This is in my opinion a surmise expressed as a surmise and should not betaken as a finding upon a definite issue. It is put forward rather as a hypothesis-which leaves room for the finding of fact that the money was actually paid—a fact which otherwise might seem difficult, to explain and which the trial Court had disbelieved. If the Limitation Act's requirements as to writing are to be discarded on the strength of oral evidence that evidence must be very definite and plain and a clear case to that effect must be made. I think this argument fails. Assuming that Rs. 25 was paid on 18th July 1928 and that Section 20 of the Limitation Act, does not apply so as to give a fresh period of limitation from that date the appellant further contends that his application for execution was in time under Cl. 5, Article 182. This ground is not taken in the memorandum of appeal, but as a pure ground of law it may be entertained. The appellant takes his stand on the decision of the Judicial Committee in Prakash Singh v. Allahabad Bank . A.I.R 1929 P.C 19 to the effect that there is no limitation applicable to Cl. 1, R. 2, O. 21, and that a decree-holder can certify payment at any time. He seeks to couple this with the old decisions to the effect that certification by the decree-holder is a step-in-aid of execution: Bakhal Das v. Jogendra . [1909] 3 I.C 391., Chote Singh v. Ishwari . [1910] 32 All. 257, Luky v. Bank of Upper India . [1911] 33 All. 529 and Bacharaj v. Babaji . [1914] 38 Bom. 47. To this he adds that just as in Jotindra v. Gagan Chandra . [1919] 46 Cal. 22 the execution petition was three days after the certification, so as it has been held that the certification may be in the execution petition itself: Khatibannessa v. Sanchia . [1916] 43 Cal. 207, he can on 14th May 1929 certify in his petition for execution a payment in 1928 although; be order on the last application for execution was on 12th September 1925, more than three years before his petition; and his petition will thus, be contends, be in time, indeed contemporaneous with the “step-in-aid.” It seems to me that the principle of this argument reduces Cl. 5, Article 182 to a shadow. Harendra v. Gagan . [1918] 35 I.C 177. and Rebati v. Alauddin . A.I.R 1927 Cal. 29 are in my opinion inconsistent with it, and it has never been accepted by this Court.

5. In Balm Bala Roy v. Jogis Chandra . [1919] 50 I.C 242.. Fletcher, J., while holding that the decree-holder can certify at any time said:

“He cannot postpone the certification for a long period of years and then say that he will save the decree from being birred by limitation by certifying the payments then.”

6. This was accepted by Suhrawardy, J., with certain comments in Jalimchand v. Yusuf Ali . A.I.R 1925 Cal. 1012.

7. It is true however that if we ask: Why can “he not do this” the recent decision of the Privy Council makes the answer difficult upon the footing that certification by the decree-holder is “an application……. to take some step-in-aid of execution of the decree,” within the meaning of Cl. 5, Article 192. This latter question was expressly left open by the Judicial Committee in Prakash Singh's case.

8. Since 1908 no Court executing a decree can recognize an uncertified payment for any purpose whatever: O. 21, R. 2(3). Cl. 1 of the rule puts a duty to certify upon the decree-holder in all cases when money payable under a decree is paid out of Court, and when a decree-holder certifies he is merely discharging his statutory duty whatever be his object. There are however two classes of cases at least in which substantially speaking a decree-holder who certifies may be said to be taking a step-in-aid of execution. One class may be exemplified by Prakash Singh's case and also by such cases as Chole Singh v. Iswaran, Bacharaj v. Babaji, Jalimchand v. Yusuf Ali and Pandurangy v. Jagya . A.I.R 1921 Bom. 411. These were cases of instalment decrees and the right to apply for execution depended under the decree upon the regularity with which the instalments had been paid. In such cases to show that his execution petition is in time a decree-holder may require to prove that before a certain date there had been vo such default as gave him a right to have, execution. To prove this he has to, prove that certain payments were made to him and before he can prove them to an execution Court he must certify them.

9. Again if a decree-holder in order to, show that his execution petition is in time, has to rely upon Section 20 of the Limitation Act, he must certify the payment before he can rely upon it. Cases of this type are Khatibannessa v. Sanchia, Madan Mohan v. Harula . A.I.R 1921 Cal. 643 and (probably) Lakhi v. Felaniani . [1914] 27 I.C 11..

10. In both these types of case it may be said that certification is a step-in-aid of execution, and certification is constantly made in these cases not because of the statutory duty, but as something necessary to entitle the decree-holder to have execution for the balance. In these cases however what the decree-holder relies upon to bring him within time is not the certification but the payments. Thus if the payment be made after the statute has barred the claim or if it be not evidenced by writing of the judgment-debtor it will be of no avail under S. 20 to extend limitation. Or if under an instalment decree the last payment proved is of such a date that the right to execute arose more than three years before the petition for execution, that petition will be barred. On this footing there is no difficulty at all in saying that the certification may take place at any time and may be made for the first time by the execution petition itself.

11. But if the decree-holder, unable to bring himself within time by reason of any payments, weeks to found upon his own act of certification as giving a fresh star under Cl. 5, Article 182, the case is very different. If it does give him a fresh start and if it can be made at any time what then? It seems plainly wrong to regard S. 20 as in some way cutting down Article 182; though in Harendra v. Gagan language to this effect was used, it is clear enough that no recourse need be had to S. 20 until Article 182 has been exhausted. Again in Balmballabh's case. Fletcher, J.'s observation was that while the decree-holder can certify at any time this is

“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.”

12. As this case was cited in Prakash Singh's case it may be that it should be taken as overruled, bub if these observations mean mora than that after 12 years Section 48 of the CPC, will end the matter, what do they mean? Take the case of a payment not evidenced by any writing of the debtor and not certified. The decree, let it be supposed, was in 1910 and in that year one rupee was paid out of Court on account of the principal money owing on the decree. The decree-holder in 1920 certifies the payment and on the next day presents a petition for execution relying on the certification as bringing him within Cl. 5, Article 182. What exactly is the answer to him? If the payment had been made after execution was barred e.g, after three years from the decree or last application (now “final order” thereon) one might cut down the language of Cl. 5 by the general principle that once a proceeding is barred it cannot revive. Again, if the fact of the payment is not proved, it might perhaps be said that the certification was not “in accordance with law”. In Jotindra's case, where it was thought that the right to certify was governed by Article 181, Lim. Act, it was held that execution was not barred because the payment was within three years of decree and the certification was within three years of payment and was a step in aid of execution. But we now know that there is no limit of time for certification and on this point the case has been overruled.

13. A payment which does not satisfy the requirements of S. 20 is nothing either under that section or under Article 182. It matters nothing whether it is made within three years or after three years of the decree. Is it then the law that if made within three years, because it gives rise to a right to certify, which right may be exercised at any time, it keeps the decree alive indefinitely since certification whenever made will give it a fresh lease of life?

14. In my judgment the answer is in the negative, but the only good reason for this answer is that certification does not under Article 182 give a fresh start to the period of limitation. Now that it is settled law that Article 181 does not apply under Cl. 1, R. 2, O. 20, and that there is no limit of time for certification, it is clear that the whole scheme of Article 182 breaks down if certification gives a fresh start of itself. The intention of Cl. 5 is that if within the first period of three years 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; 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.

15. Let us consider then how the matter stands as a question of construction. In Prakash Singh case the question was left open, but Cl. 1, R. 2, O. 21, was carefully examined. I have already shown that in certifying a payment the decree-holder may be said in certain cases to be taking a step-in-aid of execution and if his certification is what saves him from limitation it may be said very emphatically that in certifying he takes a step-in-aid. But that is not the test laid down by Article 182. I bake the article as amended in 1927. We have to see (1) whether when the Court “records” the payment it passes a final order, and (2) whether when the decree-holder “certifies” the payment he makes (a) an application, (b) to the Court to take some step-in-aid of execution. In my judgment the Court when it records the payment as it is bound to do without enquiry and without notice to the judgment-debtor is not making a judicial order but performing a ministerial act. The entry does not bind the judgment-debtor in any way; he can dispute the payment if he ever has occasion to do so. If he is not content with the entry he can gat a proper entry made on taking the proper steps. In the second place, when the decree-holder certifies, he makes no application under Article 182 any more than under Article 181. He informs the Court of a fact or he tells it a lie, but that is all. In the third place he does not ask the Court to take a step-in-aid of execution. Whatever his object is, he professes to be discharging a statutory duty which is equally a duty whether he is or is not in a position to ask for execution or likely to want it. If he “certifies” the Court “records” without his asking, and the step taken by the Court is not taken as a means to facilitate execution or as a preliminary or supplementary measure in execution of the decree. The article does not refer to the applicant taking a step but to an application to the Court (a) for execution or (b) to take a step. Court vail record an alleged payment in full and an alleged part payment with equal indifference. The motives of the decree-holder do not come into question, which depends first on there being an application and secondly upon the character of the application or more correctly upon the character of the act which the Court is asked to do.

16. The phrase refers to an executing Court asked either for execution or else asked to take a step whether with a view to ordering execution, or in furtherance of the working out of execution. It does not refer to any and every application to any Court which may in the circumstances if successful put the applicant in a better position to an for execution from the executing Court: Murgeppa v. Basaivantrao . [1913] 37 Bom. 559. It means if the executing Court is merely asked to issue notices under O. 21, R. 22, that will be sufficient; and if less than three years ago it was asked to give delivery of possession to the decree-holder as auction-purchaser that again may save limitation even if the petition for execution was more than three years ago. “To take a step-in-aid etc. is merely a phrase in amplification of the phrase “for execution.” Otherwise the latter phrase would be referable only to the tabular statement under O. 21, R. 11(2). The decree-holder who certifies a payment is not asking the Court to take any action of the character indicated by Cl. 5.

17. My review of the cases leads me to think that the doctrine which treats certification by the decree-holder as giving a fresh period of limitation necessarily introduces confusion into the working of Article 182 and that sooner or later it must be negatived in spite of the fact that it has long been accepted by high authority. It seems to me advisable to raise the question formally. I would therefore refer to a Full Bench the following questions:

(a) Whether certification by a decree-holder under Cl. 1, R. 2, O. 21 is an application to the Court to take some step-in-aid of execution of the decree.

(b) Whether when the Court records a payment under the said clause it passes a final order on such an application.

(c) Whether Tarini Das v. Bishtoo Lall . [1886] 12 Cal. 608., Wasi Imam v. Poonit . [1893] 20 Cal. 696., Rakhal Das v. Jogendra and Jotindra v. Gajan were rightly decided in so far as it was held in these cases that certification by the decree-holder was an application to the Court to take a step-in-aid of execution.

18. As the case comes before us on second appeal, we must refer the whole case to the Full Bench.

Pearson, J.:— I agree.

Opisions

C.C Ghose, J.:— In this case, the questions referred to the Full Bench for decision are as follows:

(a) Whether certification by a decree-holder under Cl. (1), R. 2, O. 21 of the CPC is an application to the Court to take some step-in-aid of execution of the decree.

(b) Whether when the Court records a payment under the said clause it passes a final order on such an application.

(c) Whether Tarini v. Bishtoo Lall, Wasi Imam v. Poonit, Rakhal Das v. Jogendra and Jatindra v. Gagan, were rightly decided in so far as it was held in these cases that certification by the decree-holder was an application to the Court to take a step-in-aid of execution.

19. In order to understand the significance of the questions raised, it is necessary to state shortly the facts involved in the case in which this reference has been made. The appellants obtained a decree against the respondent on 13th January 1922. Execution of the decree was applied for by the decree-holders on 30th June 1925. They stated that a sum of Rs. 25 had been paid to them by the judgment-debtor some time in 1924. The application for execution was however dismissed for default on 12th September 1925. The next application for execution of the decree was on 14th May 1929. In their application the decree-holders stated that a sum of Rs. 25 had been paid by the judgment debtor on 18th July 1928. According to the decree holders, payment of this sum of Rs. 25 was evidenced by a letter sent to them by the judgment-debtor through a third person. The judgment-debtor denied that he had made any payment whatsoever on 18th July 1928 or that he had sent any such letter as was alleged by the decree-holders.

20. The Munsif found that no payment of Rs. 25 had been made by the judgment-debtor on 18th July 1928 and he accordingly dismissed on 25th July 1929 the application for execution as being barred by limitation.

21. An appeal was carried by the decree-holders to the Subordinate Judge. He found that, as a matter of fact, the payment on 18th July 1928, relied upon by the decree-holders, had been actually made, bub that inasmuch as the decree-holders had failed to prove that the letter accompanying the payment and referred to above was in the handwriting of the judgment-debtor or in a writing signed by the judgment-debtor, the decree-holders were not entitled to a fresh period of limitation from the date when the said payment was made; in other words, the learned Subordinate Judge dismissed the appeal, holding that execution could not proceed as it was barred by limitation.

22. The decree-holders then preferred a second appeal to this Court and on their behalf it was argued before the Divisional Bench and also before us that their application for execution was not barred by limitation under Cl. (5), Article (182), Limitation Act, notwithstanding the fact that the decree-holders were unable to take advantage of the provisions of Section 20 of the Limitation Act. The argument as developed by the learned advocate for the appellants is set out in full on p. 6 of the paper book.

23. Under Cl. (5), Article 182, Limitation Act as amended by Act 1 of 1927 a period of three years is prescribed for the execution of a decree and the time from which the Slid period begins to run is stated to be the date of the final order-passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree. It was argued that a decree-holder could certify payment at any time, there being no limitation applicable to Cl. (1), R. 2, O. 21 of the CPC, and that certification might be in the execution petition itself and if, as has been held in some cases, certification by a decree-holder was a step-in-aid of execution, then the decree-holders' petition for execution made, as it was on. 14th May 1929, was in time and not barred by limitation by the combined operation of Cl. (1), R. 2, O. 21 of the CPC, and Cl. (5), Article 182, Limitation Act.

24. This being a second appeal, the case itself has got to be disposed of by us and in the remarks which follow will be found my answers to the questions referred to the Full Bench as also my decision on the points raised by the appellants.

25. Now, the certification of payment such as was made in this case was under the provisions of Cl. (1), R. 2, O. 21 of the CPC, which states 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 to the satisfaction of the decree-holder, the decree-holder 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.”

26. It is not necessary to refer in detail to Cls. (2) and (3) but it is useful to remember that under the present Code of Civil Procedure no payment or adjustment which has not been certified or recorded can be recognized by any Court executing a decree. Now, when one considers the scheme of R. 2, O. 21 of the CPC, it is clear that certification by the decree-holder is not and cannot be treated as an “application” made to the Court on which there must necessarily be an adjudication or order by the Court but that Cl. (2), R. 2, O. 21 of the CPC, contemplates an application by the judgment-debtor necessitating a judicial decision thereon by the Court whether the payment alleged by the judgment-debtor should be recorded or not. The judgment-debtor when the decree-holder certifies a payment under Cl. (1) does not come into the picture at all; and, as has been laid down by their Lordships of the Judicial Committee there is nothing to indicate that the legislature intended that the certification of a payment by the decree-holder under Cl. (1), R. 2, O. 21 of the CPC, should be treated as an “application.” It may be useful to quote the words used by their Lordships. Their Lordships observe: see Prokash Singh v. Allahabad Bank Limited:

“The terms of O. 21, R. 2(1), in their ordinary meaning do not involve any application by the decree-holder; the decree-holder would comply with the terms of the rule if he were to certify to the Court that money payable under the decree had been paid to him out of Court, and it would then rest with the Court to record the payment in accordance with the provisions of the rule. The rule imposes a duty upon the decree-holder to certify the payment, and a duty upon the Court upon such certificate being given to record such payment.”

Rule 2(3) provides that a payment which has not been certified, as recorded as aforesaid, shall not be recognized by any Court executing the decree. The provision in R. 2(3) no doubt was inserted for good reasons known to the legislature, and it is obvious that the provision must tend to simplify and expedite the proceedings in the Court executing the decree. There is nothing however in R. 2(3) to indicate that the legislature intended that the certification of a payment by the decree-holder under R. 2(1) should be treated as an application.”

27. In my view the observations of their Lordships of the Judicial Committee conclude the matter and it is unnecessary to pursue the matter further.

28. The next question is, when the decree-holder proceeds to certify a payment which has been made out of Court in satisfaction of a decree, does he thereby take a step-in-aid of execution of the decree within the meaning of Article 182, Cl. (5), Limitation Act.

29. Now, under Cl. (5), Article 182 there must be an “application” by the decree-holder to take some step-in-aid of execution. If however certification by the decree-holder is not an “application,” as has been held by their Lordships, then obviously the question as to whether there was a final order on an application to take a step-in-aid of execution within the meaning of Cl. 5 does not arise. But it is necessary to examine the point as to whether or not “certification” is in itself a step in-aid of execution. Now, to take some step in-aid of execution must mean some proceeding to obtain an order of the Court in furtherance of the execution of the decree. Certification of payment by the decree-holder, if Section 20 of the Limitation Act cannot be attracted thereto, would be insufficient to keep the decree in force and would therefore be no step whatsoever in furtherance of the execution of the decree. It would be a meaningless farce. Besides, it must be remembered that a step-in-aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept alive and there can be no step-in-aid of execution where the execution itself is already barred. Each case must depend upon its own facts; but it is clear that it cannot be laid down as a matter of law that the decree-holder's certification is in itself a step-in-aid of execution and can afford a fresh starting point of limitation. The payment must be made within three years of the decree or of the last starting point of limitation to be effectual under Section 20 of the Limitation Act, but it may be certified at any subsequent time by the decree-holder. But the certification itself is, in my opinion, not a step-in-aid of execution. The legislature cannot have intended that certification by the decree-holder can be used for the purpose of nullifying the provisions of Article 182, Limitation Act.

30. I have not thought it necessary to refer to the numerous cases to be found in the books. The material ones are referred to by the learned Chief Justice in his order of reference. In my view the answers to the three questions referred to the Full Bench must be in the negative.

31. It was sought to be argued before us that the judgment-debtor was estopped from denying that the letter accompanying the payment referred to above was in his handwriting or signed by him, having regard to the provisions of Section 115 of the Evidence Act. This point has been examined by the learned Chief Justice in his order of reference and, for the reasons given by him, was negatived. I respectfully agree with him.

32. As regards this appeal, I am of opinion that the learned Subordinate Judge has taken a correct view of the matter and the present appeal being without substance must be dismissed with costs before us and the Divisional Bench. The hearing fee is assessed at two gold mohurs in each casa.

Buckland, J.:— The questions referred to this Bench present no difficulty, notwithstanding the lengthy chain of authorities bearing upon the point whether certification by a decree-holder is a step-in-aid of execution, once the principles of the decision in Prakash Singh v. Allahabad Bank. Ltd. are appreciated and applied.

33. Their Lordships of the Judicial Committee drew attention to the distinctions to be drawn between the procedure prescribed by the terms of R. 2(1) and 2(2), O. 21 of the CPC, which exclude all such argument as has been addressd to us as to the meaning and effect of R. 2(1) based upon any supposed analogy to the meaning and effect of R. 2(2).

34. Under R. 2(1), where money is paid under a decree out of Court to the satisfaction of the decree-holder, the latter is required to certify the payment to the Court and the Court is required to record the same accordingly. It is contended that in so doing the Court makes a final order within the meaning of Article 182(5), Limitation Act. It is unnecessary to express more than doubts as to whether in recording the payment the Court makes an order or whether its act is other than ministerial, for the point at which such considerations arise is, in my opinion, far from being reached. Bor the same reason it is unnecessary to consider whether by fulfilling the requirements of R. 2(1) the decree-holder takes some step-in-aid of execution of the decree, or dialectical subtleties founded upon the right of the decree-holder to execute his decree for the balance or his subsequent incapacity to execute the decree for the amount which he has received. In the authorities cited we find discussions as to whether an application for certification is a step-in-aid of execution, but however cogent or otherwise the reasoning may be which has led in the past to its being so held it is no longer of value for after the decision of the Judicial Committee the question is capable of solution upon for simpler and less controversial grounds.

35. Their Lordships had occasion to decide whether certification under R. 2(1) was an application within Article 181, Limitation Act, and in the course of his judgment Sir Lancelot Sanderson pointed out that the terms of the rule do not provide for any application being made by the decree-holder. As however the learned Judge later observed that such certification was not an application within the meaning of Article 181 it has been argued that certification may nevertheless be an application within the meaning of Article 182(5). But for his Lordship having, in an earlier passage declined to express any opinion with reference to cases cited dealing with matters which were held to be steps-in-aid of execution of a decree within the meaning of Article 182(5), a point which-it was not necessary to determine, there would be no foundation whatever for such a contention. If, as has been decided, the terms of R. 2(1) involve no application, and certification is not an application within the meaning of Article 181, the residuary article to be applied to applications for which no period of limitation is provided elsewhere in the schedule to the Act or by Section 48 of the CPC, how can it possibly be said to be an application made to take some step-in-aid of execution and as such within the meaning of Article 182(5)? In my judgment the short answer is that there was no application at all, and that being the case Article 182(5) cannot be invoked on behalf of the appellant. For these reasons I would answer the first and third questions referred in the negative. The second question does not therefore arise and I agree with the order which it is proposed should be made.

Suhrawardy, J.:— I am of the same opinion. The point has been so lucidly and throughly discussed in the order of reference that I cannot add anything useful. I agree that the questions referred to the Full Bench have to be answered in the way that my learned brothers Ghose and Buckland, JJ., have stated in their judgments.

Mukerji, J.:— I can find nothing that I may usefully add to what has been said by my Lord the Chief Justice in his order of reference and by my learned-brothers Ghose and Buckland, JJ., in the judgments just delivered. I agree in the order proposed.

Rankin, C.J:— I agree.

V.B/R.K

36. Appeal dismissed.