(1) The scope of Article 82 of the Indian Limitation Act (which shall be hereinafter called the 'Act') comes up for consideration in this appeal.
(2) The facts proved are: the second defendant borrowed in 1926 a sum of Rs. 2,000/- From the Gajanan Urban Co-operative Bank at Byadgi; the appellant (plaintiff) and the deceased first defendant were sureties for the principal debtor (second defendant); the principal debtor defaulted in paying the amount borrowed; consequently there was an award decree in 1930 again the principal debtor as well as against the sureties; the principal debtor became an insolvent some time in 1933; the loan due to the Co-operative Bank in the year 1946 amounted to Rs. 4,800; at the stage the President of the Co-operative Bank sent for the appellant and asked him to pay up a sum of Rs. 1900 in full satisfaction of the debt due to the Bank: he promised the appellant that if he paid Rs. 1900 he would recommend to the Assistant Registrar 4, Co-operative Societies, Dharwar to write off the balance; accordingly one Kotrappa Gulappa Gondi on behalf of the appellant deposited on 2-11-1946 a sum of Rs. 1900/- in the Co-operative Bank and admitted the letter Ex. 77. The relevant portion of that letter reads as follows:
'The principal debtor Puttappa (respondent 2) has been declared to be an insolvent by the Civil Court. Neither be nor the sureties hold any moveable or immoveable properties. The Bank has been unable to recover anything from them. As the Bank has been unable to recover a 20 year-old debt, the Chairman and Members of the Managing Committee sent for me and told me that as the surety Rudrappa Fakirappa Sankannavar (appellant) was my friend. I should pay off the debt of Rs. 1900/-. Out of this, Rs. 55/- which is the share amount and Rs. 36-2-5 the dividend thereon, in all Rs. 91-2-5 standing to the name of the surety Rudrappa, is deducted and the balance of Rs. 1808-13-7 is paid by me today on behalf of the said surety. It is, therefore, prayed that the papers may be forwarded to the Asst. Registrar, Dharwar, for obtaining his sanction for remission of the interest, penalty and Court costs.'
The Managing Committee recommended to the Asst. Registrar to accept the sum of Rs. 1900 in full satisfaction of the debt due from the appellant and the respondents; meanwhile the money deposited on behalf of the appellant was kept in suspense account; the order of the Assistant Registrar was received on 17-4-1947; thereafter the money paid was adjusted towards toe debt and the debt stood discharged. The present suit was filed on 16-2-1950.
(3) The Courts below have held that the suit is barred by limitation. They have held that Article 82 of the 'Act' governs the facts of the case. This conclusion is not open to challenge. But the point in controversy is, whether the cause of action arose on 22-11-1946 when a sum of Rs. 1900/- was deposited or on 17-4-1947 when the same was adjusted towards the debt due. Sri Malimath, the learned counsel for the appellant contends that the deposit made on behalf of his client became a payment only on 17-4-1947 and at any rate it became an excess payment on that day and the suit having been instituted on 16-2-1950 the same is within time. Article 82 of the 'Act' reads as follows:
'By a surety against a co-surety Three years. When the surety pays anything in excess of his own share.'
According to Sri Malimath, the payment made on 22-11-1946 was only a conditional payment and it became a payment in the true sense only on 17-4-1947. The Courts below have held that the payment in question was not a conditional payment. It is not necessary to decide this point as I am of opinion that the payment in question became an excess payment only on 17-4-1947.
(4) As mentioned earlier, the money due to the Co-operative Bank on 22-11-1946 was Rs. 4800/- and odd. Hence the payment of Rs. 1900 on 22-11-1946 on behalf of the appellant was not in 'excess of his share' within the meaning of Article 82. On that date he was liable to pay more than Rs. 2400/-. The payment made by him became in 'excess of his share' only on 17-4-1947 and that in view of the remission given by the Bank with the approval of the Assistant Registrar. The period of limitation under Article 82 commences only when one of the sureties pays anything in 'excess of his share'. It is not a mere payment that gives rise to a cause of action. It must be an excess payment. It may turn out to be an excess payment because of subsequent events. For example, some payments might have been made by one of the sureties in execution of a decree, which payments may not be 'in excess of his share' at the time when the payments were made but may become 'excess of his share' due to modification of the decree by the appellant Courts. The appellate decree might have been made more than three years after the payments were made. In such a case, it is unreasonable to deny the benefit of reimbursement to the surety who made the payments. For these reasons, I am of the opinion that in the instant case the payment made on behalf of the appellate became 'excess of his share' only on 17-4-1947 and hence the suit is within time.
(5) In the result the appeal is allowed and the suit is decreed for a sum of Rs. 950/- with interest on the same at 5 per cent from 17-4-1947 till realisation. The contesting respondent shall pay the costs of the appellant in all the three Courts.
(6) Appeal allowed.