1. This is an execution; first appeal and arises under the following circumstances:
One Chadda Singh, father of respondent 1 Baru Singh, mortgaged his property to the decree-holder appellant, Joti Prasad, on 8th July 1910. Six years later, on 31st March 1917, a second mortgage was made in respect of a portion of the property mortgaged in 1910, in favour of the respondents Jagannath and Shambhu Nath. Janeshar Das, another respondent to this appeal, purchased most of the property mortgaged, on 28th March 1919 for a sum of Rs. 10,000. Baru Singh, who had since succeeded his father to the property, had to pay off certain debts including a promissory note executed by himself in favour of Joti Prasad. Accordingly, he left most of the consideration money in the hands of Janeshar Das for payment to his creditors including Joti Prasad and Jagannath and Sbambhunath, As no payments were made to Joti Prasad, he brought a suit on foot of the mortgage of 1910 and obtained a final decree on 22nd December 1923. He put the decree' into execution and his application was dismissed on 8th May 1924. The second application, namely the present one out of which the appeal has arisen, was made on 20th July 1928, more than three years after the dismissal of his. first application. He was met with the plea that the application was time barred, and we have to see whether this plea is correct.
2. Before we can arrive at the correct conclusion, certain additional facts have-to be considered.
3. Baru Singh brought a suit against Janeshar Das, the purchaser of the mortgaged property in 1923, being Suit No... 176 of that year for recovery of the consideration money of the sale deed and interest and possibly damages. He obtained a decree for a large sum of money-exceeding Rs. 17,000 on 11th February 1924. It was declared that the amount decreed was to be a charge on the property sold. In the month of May 1924 Baru Singh certified payment of a sum of Rs. 7,000 odd towards his degree by Janeshar Das, and he also relinquished his rights as exproprietary tenant in the sir and khudkasht lands in favour of Janeshar Das. On 23rd April 1927 Baru Singh obtained a final decree for sale against Janeshar Das. Janeshar Das in satisfaction of the decree obtained by Baru Singh against himself resold the property to Baru Singh on 11th February 1928.
4. In support of his plea that the decree is within time, Joti Prasad relies on certain payments alleged to have been made to him from time to time by Janeshar Das and also on certain acknowledgments said to have been addressed to him by Janeshar Das and Baru Singh. The learned Judge found that as a matter of fact payments were received by Joti Prasad from time to time and his allegation of having received in all the sum of Rs. 1,336 odd was correct. He found that the acknowledgements written by Janeshar Das were fabrications and were made and written after Janeshar Das had transferred the property to Baru Singh. As regards the acknowledgment said to have been written by Baru Singh the learned Judge held that its writing by Baru Singh had not been established. The learned Judge found that the payments which Joti Prasad received did not save limitation. The learned. Judge in the Court below came to the conclusion that Janeshar Das was not a real purchaser of the property of Baru Singh under the sale deed of 28th March 1919, and that the real purchaser was Joti Prasad himself. For this conclusion the learned Judge relied on a statement once made by Joti Prasad himself in the course of a deposition given on a different occasion and under certain other circumstances. This deposition was given on 18th November 1925.
5. It is important to note that nobody has taken the responsibility of making -the allegation that Janeshar Das was not the true purchaser of the property of Baru Singh under the deed of 1919. In this particular case it is a very serious position to take up to plead whether a particular person was or was not the true owner of- the property mortgaged. Baru Singh did not take up that responsibility by saying in his petition of objection that Janeshar Das was not the true owner of the property but Joti Prasad was. If Janeshar Das was not the true owner of the property, Baru Singh himself would not get any title from the sale deed executed in his favour by Janeshar Das on 11th February 1928. Baru Singh was likely to be the best person to know who was the real purchaser of the property under the deal of 1919. As neither the decree-holder nor Baru Singh nor even Janeshar Das took up the position that the sale deed of 1919 was farzi, and was in reality in favour of Joti Prasad we think it was not within the province of the learned Judge to come to the conclusion that Janeshar Das was a fictitious purchaser, the real purchaser being Joti Prasad. We have already pointed out that this position could not be very well taken up by Baru Singh himself. In the circumstances, we have to brush aside the .learned Judge's conclusion as being based on nobody's pleading and on nobody's responsibility for any such pleading.
6. We need not consider whether the written acknowledgments by Janeshar Das dated respectively 6th May 1924, 27th July 1925 and 12th August 1926 were real or collusive documents having been brought about after the sale by Janeshar Das to Baru Singh. The learned Judge has accepted as a fact that certain payments were received by Joti Prasad. But the learned Judge says that these payments were received by Joti Prasad because he employed his own men to collect the rent of the mortgaged property sold ostensibly in favour of Janeshar Das for his own benefit. We have shown that this position cannot be taken up and has not been taken up by anybody being . party to the present litigation. We must treat Janeshar Das for the purpose of the present litigation as the true owner. If Janeshar Das is not the true owner, Baru Singh has no title and he must go out of the case and will not be allowed to object to the sale of the property at the instance of Joti Prasad. If Janeshar Das was the true owner, then if he allowed Joti Prasad to collect the rents and profits of the mortgaged property the amounts recovered from time to time must be taken as having been in the shape of payments made by Janeshar Das to Joti Prasad towards the decretal debt.
7. In this view the payments which were properly certified on 20th March 1928 would save limitation. In the Fall Bench case of Joti Prasad v. Sri Chand : AIR1928All629 , it was held that there is no period of limitation fixed for a decree holder to certify payments to him. When a decree-holder has made certification he is entitled to prove the payments even if the payments were made more than 90 days prior to the certification. The certification therefore lets in evidence in proof of the payment.
8. The decree-holder has produced his account-book and he has examined his karinda to prove the payments. We have already stated that collections even if made on behalf of Joti Prasad must he treated as payments made on behalf of Janeshar Das and by and with his consent. These payments which extend over the years 1925 to 1928 save limitation. The finding of the learned Judge in the Court below was materially coloured by his opinion that Janeshar Das was a benamidar for the decree-holder. When that view is negatived on the ground that nobody takes upon himself the responsibility for that payment we must take the decree-holder's word as correct, namely the payments were actually made by Janeshar Das, and towards interest as certified by the decree-holder on 20th March 1928. Most of these payments namely the payments other than the payments of 5th January 1928 and 20th February 1928 were made before the passing of Act 1 of 1927.
9. In the result we allow the appeal against Baru Singh alone and dismiss it as against the other respondents who were made parties after the expiry of the limitation of the appeal. Further as regards the respondents other than Baru Singh the payments do not extend the period of limitation. Janeshar Das who actually made the payments has now no interest left in the property.
10. We set aside the order of the Court below and send back the execution application to it and direct that it be proceeded with against Baru Singh in accordance with law. The appellant will receive his costs from Baru Singh in this Court and in the Court below. The appellant will pay the costs of the respondents Jagannath, Shambhu Nath and Janeshar Das.