1. This appeal raises an interesting question of limitation. The appellant is a creditor, while the respondent is a jagirdar-debtor. It is the case of the appellant that the respondent has been borrowing moneys from him on bonds and promissory notes. She borrowed a sum of Rs. 18,000/- on the 12th Meher 1356 F. at 9% per annum, repayment being on monthly instalments of Rs. 300/- with a condition that default of any instalment would entitle the creditor to recover the balance of the amount. Apart from this debt, there are four others Rs. 3,200/- borrowed on a document dated the 4th Thir, 1357 F. at 12% per annum; Rs. 500/- under a document dated 10th Meher 1357 F. at 12% per annum; Rs. 600/-by a document dated the 15th Bahman 1358 F. and Rs. 8,000/- under a document of 10th Ardibehist, 1353 F. at 6% per annum. Except for the first debt of Rs. 18,000/- obtained under a band dated the 12th Meher, 1355 F., all the other debts have been held by the Board to be time-barred.
In respect of the first debt, it has been held that Rs. 9,000/- were paid and the balance of the amount together with interest is due. The appellant complained that the Jagirdar Debt Settlement Board (hereinafter referred to as the Board) has not applied the provisions of Section 28, nor of Section 35 and that the four other debts which have been held to be time-barred are not time-barred. The respondent has filed a memorandum of crass-objections not only supporting the Board's decision, in respect of the four debts that have been time-barred, but also challenging the award in respect of first debt of Rs. 18,000/- which, according to the respondent is also time-barred.
2. A preliminary objection has been raised by the learned Advocate for the appellant to the maintainability of the cross-objections. It Is contended that under Section 51 of the Jagirdar Debt Settlement Act, the provisions of the Civil Procedure Code apply, save as otherwise expressly provided in the Act, and since Sections 47 to 49 provide only for an appeal, it must be deemed that the provisions of the Civil Procedural Code which deal with the filing of cross-objections are specifically excluded. We find it difficult to accept this contention.
What Section 51 provides is for the application of the provisions of the Civil Procedure Code to all proceedings under Chapter III, unless some other procedure is prescribed with respect to any particular matter. The provisions of Sections 47 to 49 deal with appeals and Court-fees and grounds of appeal and in so far as this provision is concerned, It must be deemed that the provisions of the Civil Procedure Code in respect thereof are (sic) (not ?) applicable. But that does not prevent the application of Order 41, Rule 22 which provides for objections to the decree or award, as if he had preferred a separate appeal. Having regard to the general scope of the application of the provisions of Civil Procedure Code under Section 51, we cannot accept the argument of the learned Advocate for the appellant that Order 41, Rule 22 does not apply to a case of appeal filed under Section 47.
3. The next point is one relating to limitation. It is not denied, and the learned advocate for the appellant was not able to contend otherwise, that the debts in items 2 to 5 are time-barred. But the learned advocate now insists that he may be given an opportunity to adduce evidence in respect of these debts also. We cannot allow him to adduce any additional evidence because the evidence on record is sufficient for the disposal of this question. Trough certain amounts have been noted as having been paid, no evidence has been adduced to prove, that they have been verified and signed by the debtor or her agent which is necessary under Section 20 proviso of the Limitation Act.
4. Now in respect of the debt of Rs. 18,000/- evidenced by the document of 12th Meher 1356 F. the last payment is shown in the accounts as on 14th September 1950. If this entry is proved, then certainly the debt would be within time as the petition was filed on 14-3-1953. Two points have been urged in respect of this debt by the Iearned advocate for the appellant, firstly, that he was not allowed to prove certain documents filed by him In spite of the fact that the Board had accepted his prayer to examine the debtor.
It is somewhat surprising that the debtor was not examined on the ground that notice was not served on her. It is equally surprising that the creditor was ashed to summon the debtor as if she is a-stranger witness. The distinction between a party witness and a witness who is not a party is that the party-witness is represented by an advocate and notice to him will be notice to the party. When the Court had directed the examination of the debtor, it was the duty of the advocate representing her, to contact her and put herin the witness-tax or examine her on commission, as the case may be. Merely because notice has not been served, her non-examination is no fault of the creditor.
It appears in this case that even on the second occasion, the creditor paid batta to summon the debtor, but on the date fixed for the appearance of the debtor, the award has been passed and it is not evident from the proceedings whether summons were served or not. Be that as it may, we consider this procedure to be inconsistent with the justice of the case and we think that the creditor ought to have, been given an opportunity to prove the several letters produced by him, according to which the debtor has acknowledged this debt of Rs. 18,000/-.
5. One other question was raised incidentally by the learned advocate for the respondent that, the debt of Rs. 18,000/- is time-barred because under Section 20, Proviso, an entry in the account book which does not contain the signature of the debtor in token of her having paid the amount cannot be availed of for saving limitation. On the other hand Mr. Narasimhachari contends that where Article 75 of the Limitation Act governs the case, Section 20 is inapplicable. Article 75 deals with the case of a promissory note or bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due.
The terminus a quo is the making of the default unless the payee or the obligee waives, and then when a fresh default is made, there is no such waiver. There is, therefore, a difference in the 'Terminus a Quo' of this article and of Section 20 which deal with the question of payment as to the date when payment is made. It is true that where Article 75 applies, Section 20 is inapplicable, but in our view, when time begins to run by reason of the default under Article 75, the saving of limitation by payment of money under Section 20 or by an acknowledgment under Section 19, which must be established in accordance with the provisions of the respective sections.
In this case, the Board has held in respect of the payment of 14th September 1950 that there is no verification. This is what the Board has stated :
'....This creditor has filed utaras of his bahi khatas. The Commissioner has observed that nowhere on these, bahi khatas there appears to be a single signature appended by the debtor. The debtor has flatly defied the claim of this creditor. The corroborating evidence of this creditor consists only of Ramgopal who is his son. According to him he writes his father's bahi khatas and he has deposed that the last payment was made by the debtor on 14th September 1950. And it was not in repayment of any specific debt but towards the accounts in general.' Unless the debtor is proved to have made any payment in order to sane the limitation and has verified those payments the entry into the account books of the creditor of any payments alleged to have been made by her will not in the Board's opinion save the limitation. The learned Advocate for Bahadurmal creditor has argued that this Board is not a Civil Court, and therefore the law of limitation is not applicable to the applications made under Section 11 of the Jagirdars Debt Settlement Act.
From this finding it is clear that in so far as the payment of 14th September 1950 is concerned, since it has not been verified by the debtor, it cannot aid the creditor in saving limitation. In our view, the finding isin accordance with Section 20 proviso. Some evidence, has also been read to us in respect of non-payment of instalments from the date of the Police Action or from the date of the abolition of jagirs. We are refraining, from giving a finding on this evidence because, in our view, the matter will have to go back in any case in order to give an opportunity to the creditor to prove those letters which are acknowledgments within the meaning of Section 19. If they are proved, then the questions whether they are acknowledgments within the meaning of Section 19 and whether those can save limitation would' have to be considered by the Board, The Board will also consider on the evidence on record when the default has been made. If any payments-have been made, as spoken to by the creditor and th3-debtor, after the abolition of the Kamal Yar Jung estate and consequently the abolition of all Jagirs in 1949, the debt would be barred unless it is saved by a waiver and subsequent payment which is acknowledged and accepted by the debtor as payment towards that debt, or unless there is an acknowledgment under Section 29 (Sic) (Section 20) which brings it within three years from the date of the) application under Section 11, viz., 14th March 1953. We are setting out these propositions so that the Board may confine its enquiry to thase particular matters and dispose of the case expeditiously.
6. Now there is the question of Sections 28 and 35 of the Act. We have repeatedly pointed out that these provisions are an essential part of the scheme of the Jagirdars Debt Settlement Act and cannot be ignored. Not only should amounts be computed in accordance with the terms of Section 28 and in this case Sub-section (4) of that section is applicable), but also after the amounts are computed, be scaled down by reference to the paying capacity of the debtor which necessitates an enquiry and determination of the paying capacity under the provisions of Section 35. It is evident that the debt commenced on the 7th Ardibehist 1352 F. which corresponds to 11thMarch 1943 when the debtor seems to have acknowledged it for Rs. 7000/-, which is stated to be balance due out of a pronote is Rs. 5275/-. We do not know at this stage whether there was any previous pronote debt. If there is any previous pronote debt of which the bond of 7th Ardibehist 1352 F. is a renewal, then the transaction will not come under Sub-section (4), but under one of the preceding Sub-sections and that will have to be applied.
At this stage, we are not in a position to determine this question. But since we are remanding this matter also for the application of the provisions of Sections 23 and 35 of the Act, this appeal Is accordingly allowed with the directions that the Board may determine whether the debt is barred by limitation and for this purpose allow both parties to adduce any evidence if thought necessary, and if the debt is not barred by limitation, to determine as to what Division of Section 28 is applicable and accordingly to apply the provisions of that Section. After determining the paying capacity of the debtor under Section 35, the Board may consider the question of scaling down of the debt and pass an award accordingly. The costs of this appeal will abide the result and there will be a certificate for the refund of the Court-fee. The subject-matter of the cross-objections are also remanded for disposal by the Board.
(Sa) C. M. P. No. 4539/60: Since the matter isbeing remanded to the Board, this petition may be heard and disposed of by the Board itself.
7. C. M. P. No. 4538/1960 : Dismissed.