1. This is an appeal in an execution of decree case. The decree was one which directed the payment of the decretal amount by twenty half-yearly instalments on certain fixed dates, and it gave the decree-holders a power to execute the whole decree, or so much of it as was unpaid, on the occurrence of default in the payment of any instalment. The decree-holders have now applied, in pursuance of the power reserved to them, for execution in respect of the amount remaining due after the payment of the eighth instalment. Their allegation is that the judgment-debtor paid eight instalments regularly and then ceased paying, and they apply for execution for the whole sum remaining due under the decree, The judgment-debtor in reply denies that he paid any of the first eight instalments and sets up limitation as a bar. The lower Court has rejected the application for execution, chiefly on the ground that payment of the eight instalments alleged by the decree-holders to have been paid was not certified to the Court as required by Section 258 of the Code of Civil Procedure. The decree-holders appeal, contending that they were entitled to give proof of the payment of the eight instalments, even though those payments were made out of Court. For the respondent the last clause of Section 258 is relied on. On this point there is a long line of decisions, commencing with the Full Bench decision of the Calcutta High Court, reported in IV, Bengal Law Reports, Full Bench, page 130. It is true that that decision was passed under Act No. VIII of 1859, but, as remarked recently by the Bombay High Court, in the case of Purmananddas Jiwandas v. Vallabdas Wallji I.L.R. 11 Bom. 506, 'it is a destinct decision of a Full Bench of the Calcutta Court presided over by Sir Barnes Peacock that a judgment-creditor, seeking to enforce his decree, may avail himself of uncertified payments made by the judgment-debtor as an answer to a plea of limitation, and we are not aware that it has ever been questioned, nor has any change been introduced into the present Civil Procedure Code which militates against the grounds of the decision. We must therefore hold that effect may be given to the payments which have been admittedly made to the applicant for the purpose of evading the plea of the limitation.' The Calcutta Full Bench case has also been followed by this Court in Sham Lal v. Kanahia Lal I.L.R. 4 All. 316, and in Zahur Khan v. Bakhtawar I.L.R. 7 All. 327, and still more recently by the Calcutta High Court in the case of Hurri Prashad Chowdhry v. Nasib Singh I.L.R. 21 Cal. 542, at p. 549, where the same view is expressed as by the Bombay High Court in the case above cited. This is a very strong current of authority, and sitting as a single Judge of this Court, I think I am bound to follow it. Indeed, it seems to me that the object of the prohibition in the last clause of Section 258 is to compel the judgment-debtor to be careful to apply to the Court to have recorded as certified any payment he may have made on account of the decree if he desire that such payment should be recognised by the execution Court as against the decree-holder executing the decree. That prohibition does not, in my opinion, apply to a case like the present. For these reasons I am of opinion that the decree-holders ought to have been allowed to prove payment. There was on that point a distinct issue before the lower Court, as the decree-holders had asserted and the judgment-debtor had denied the payments. That issue ought to have been tried and decided. I remand the following issue under Section 566 to the Lower Appellate Court, viz.:
2. Did the judgment-debtor pay all or any, and if so which, of the first eight instalments due on the decree, dated the 10th September 1885
3. The lower Court will allow the parties to produce evidence on this point. After receipt of the finding ten days will be allowed for objections.
4. Issue referred under Section 566 of the Code of Civil Procedure.