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Atmaram Nemchand Gujar Vs. Mallappa Appayya Kotiwale - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 140 of 1939
Judge
Reported in(1941)43BOMLR880
AppellantAtmaram Nemchand Gujar
RespondentMallappa Appayya Kotiwale
DispositionAppeal dismissed
Excerpt:
.....of 1908), articles 181, 182(5)--application to record part payment of decretal debt--whether such application a step-in-aid of execution.;an application made to the court to record an adjustment or a part payment of a decretal debt under order xxi, rule 2, of the civil procedure code, 1908, cannot be regarded as an application within the meaning of art, 181 of the indian limitation act, 1908, and it does not, therefore, amount to a step-in-aid of execution under article. 182(5) of the act so as to save limitation.;the plaintiff obtained a decree on july 11, 1932. on june 30, 1935, a part payment was made by the defendants of the amount due under the decree. on september 16, 1935, the plaintiff applied to the court under order xxi, rule 2(1), of the civil procedure code, 1908, to certify..........made within three years of the decree and as the application was made within three years of the payment, the application had the effect of being a step-in-aid of execution. however, in shri prakash singh v. allahabad bank ltd. (1928) 31 bom. l.r. 289, p.c., the privy council held that an application to record an adjustment under order xxi, rule 2, civil procedure code, was not an application within article 181 of the indian limitation act, on the ground that it was not strictly speaking an application at all; it was a mere certificate, stating that a certain payment had been made, and a request to the court to carry out the provisions of order xxi, rule 2. the privy council held that it could not be regarded as an application within the meaning of article 181 of the indian limitation.....
Judgment:

John Beaumont, C.J.

1. This second appeal raises a short point of law, namely, whether an application made to the Court to record a part payment of a decretal debt under Order XXI, Rule 2, Civil Procedure Code, 1908, is a step-in-aid of execution, which will prevent, limitation running under Article 182(5) of the Indian Limitation Acticle 1908.

2. The facts shortly are that there was a decree in favour of the plaintiff dated July 11, 1932, and on June 30, 1935, a part payment was made by the defendants of the amount due under the decree, and on September 16, 1935, the plaintiff applied to the Court to certify the part payment, and the Court acceded to the application. This darkhast was issued on November 8, 1935, more than three years from the date of the decree. The question is whether the application of September 16, 1935, is a step-in-aid of execution under Article 182(5) of the fndian Limitation Act so as to save limitation.

3. In Bacharaj Nyahalchand v. Babaji Tukaram (1913) I.L.R. 38 Bom. 47 this Court held that such an application as that of September 16, 1935, was a step-in-aid of execution, and the same view was taken by other High Courts: Maung Law San v. Maung Po Thein (1924) I.L.R. 2 Ran. 393 and Jatindra Kumar Das v. Gagan Chandra Pal (1918) I.L.R. 46 Cal. 22. In both of those cases the application was made more than three years after the date of the decree, as it was in the present case. The Courts held that, as payment was made within three years of the decree and as the application was made within three years of the payment, the application had the effect of being a step-in-aid of execution. However, in Shri Prakash Singh v. Allahabad Bank Ltd. (1928) 31 Bom. L.R. 289, p.c., the Privy Council held that an application to record an adjustment under Order XXI, Rule 2, Civil Procedure Code, was not an application within Article 181 of the Indian Limitation Act, on the ground that it was not strictly speaking an application at all; it was a mere certificate, stating that a certain payment had been made, and a request to the Court to carry out the provisions of Order XXI, Rule 2. The Privy Council held that it could not be regarded as an application within the meaning of Article 181 of the Indian Limitation Act. If it is not an application within the meaning of Article 181, I do not see how it can be an application within Article 182(5), the relevant words of which are; '(where the application next hereinafter mentioned has been made) 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 or order'. So that there must be an application to take a step-in-aid of execution, and having regard to the Privy Council's decision, it seems to me that there was no application. No doubt, the Privy Council were invited to express an opinion as to the correctness of the Indian cases in which it had been held that such an application as is here in question amounted to a stepin-aid of execution under Article 182(5). But their Lordships held that as that article was not before them, it was unnecessary to express an opinion on the point. However, in my view the reasons on which the Privy Council decision was based really cover the point, and it has been so held by a full bench of the Calcutta High Court in Amarkrishna Chaudhuri v. Jagatbandhu Biswas (1931) I.L.R. 59 Cal. 760, F.B.. Bacharaj's case must be treated as overruled, and this appeal must be dismissed with costs. There will be one set of costs.

Sen, J.

I agree.


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