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Jai Karan Vs. Panchaiti Akhara Chota Naya Udasi Nanak Shahi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1933All49
AppellantJai Karan
RespondentPanchaiti Akhara Chota Naya Udasi Nanak Shahi
Excerpt:
- - i am, therefore, clearly of opinion that the application, in view of the new lim......29th december 1929, rs. 85 are said to have been paid by the judgment-debtor out of court to the decree-holder. the decree holder applied to certify it on 16th march 1931. the present application for execution was made on 24th june 1931. the court below has held that the certificate of payment was a step in aid of execution, and inasmuch as the payment was made within three years of the decree and the certificate was within three years of the payment, the court has held that there is no force in the objection that the application was barred by time. section 20 has been amended by act 1 of 1927, which came into force on 1st january 1928. it is quite obvious that as the law of limitation is a law of procedure the amended act must govern all future payments and all future applications for.....
Judgment:

Sulaiman, c.J.

1. After arguments were heard in this case I dictated the order, and Mr. Ambika Prasad left the Court after the order was dictated. Mr. Shankar Sahai Verma states, and I accept his statement, that he made a request that the judgment should not be signed and that the question of limitation should be reconsidered. The order was, however, signed along with a number of other orders which were submitted by the judgment-writer. Mr. Verma then brought it to my notice that Section 20, Lim. Act, had been amended. I think there has been a misunderstanding in this case, and in view of the request made by Mr. Shankar Sahai, which was acceded to, the order was signed inadvertently. In the exercise of my inherent jurisdiction I set aside the order and direct that the case should be put up for further hearing.

2. This is an application in revision by the judgment-debtor from an order of the Court of Small Causes dismissing his objection to the execution of a money decree. The decree was passed on 10th June 1927. On 29th December 1929, Rs. 85 are said to have been paid by the judgment-debtor out of Court to the decree-holder. The decree holder applied to certify it on 16th March 1931. The present application for execution was made on 24th June 1931. The Court below has held that the certificate of payment was a step in aid of execution, and inasmuch as the payment was made within three years of the decree and the certificate was within three years of the payment, the Court has held that there is no force in the objection that the application was barred by time. Section 20 has been amended by Act 1 of 1927, which came into force on 1st January 1928. It is quite obvious that as the law of limitation is a law of procedure the amended Act must govern all future payments and all future applications for execution, even though they may be in pursuance of a decree passed previously. Section 20 therefore applies to the payment of Rs. 85 made on 29th. December 1929. The proviso added to the section makes it quite clear that a payment of interest as such does not now save limitation, unless there is an acknowledgment of the payment appearing in the handwriting of or in a writing signed by the person making the payment. This is not so in the present case. It follows that this payment did not help to keep alive the limitation.

3. It seems to me that a payment of money made by the judgment-debtor out of Court cannot be treated in any sense as a step in aid of execution. It is an act of the judgment-debtor out of Court, whereas a step in aid of execution is supposed to be an act done by the decree-holder in Court. It may be said that the payment of the amount by the judgment-debtor implies a receipt of the amount by the decree-holder, but that too takes place out of Court, and cannot, in my opinion, be considered as a step in aid of execution, which obviously must be in Court within the meaning of Article 182, Lim. Act. If the payment were to fulfil the requirements of Section 20, it would extend limitation. But that is quite a different matter from saying that it is a step in aid of execution. The case of Jotindra Kumar Das v. Gangan Chandra Pal AIR 1919 Cal 677 was decided when the old law of limitation was in force, and I do not think that the learned Judges meant to lay down ' that the payment could itself be considered as a step in aid of execution. All that they decided was that the payment having been made within three years of the decree, it kept alive the decree, and its being certified within three years of the payment, saved limitation.

4. There has been some conflict of opinion on the question whether an application merely certifying payment is or is not a step in aid of execution. It may for the purposes of this revision be assumed without deciding that such a certificate is a step. But if the payment of 29th December 1939 cannot help to keep alive the decree and cannot itself be regarded as a step in aid of execution, the certificate which was made more than three years after the decree cannot help the decree-holder. I am, therefore, clearly of opinion that the application, in view of the new Lim. Act, was barred by time. The Court below has overlooked the new provision of the law, as was done at the first hearing of this case even in this Court. I think that this is a sufficient ground for interference in revision. I accordingly allow this revision, and setting aside the decree of the Court below, dismiss the application for execution. As the point was raised at a late stage in the case, I direct that the parties should bear their own costs in both the Courts.


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