Daniels and Neave, JJ.
1. This appeal has been referred to a Bench for a decision of the question whether a statement in an execution application of money having been paid by the judgment-debtor is such a certificate of payment as is contemplated by Order XXI, Rule 2, of the Code of Civil Procedure and has the effect of saving limitation. The authorities of this Court are against the contention. The authority of other High Courts is the other way and the learned Judge who referred the base doubted the correctness of this Court's rulings.
2. The facts are these. The decree was passed on the 25th of March, 1914. It was a compromise decree and provided for payment by annual instalments on the 15th of March each year, commencing with 1915. There was also a provision that on two instalments falling into arrears, the whole decretal amount should become payable. The instalments for the first three years, 1915 to 1917, were paid on due date and were duly certified to the court. No further payment was certified. On the 7th of September, 1922, the decree-holders filed the present application for execution. Column 5 of the form of application which is intended to show any previous payment or adjustment is left blank. In the body of the application the decree-holders stated that the instalments for the years 1918 to 1920 had been paid and that as the instalments for 1921 and 1922 were in arrears, they claimed the balance due under the decree.
3. We think that the rulings of this Court are correct and should be followed. The first is that of KNOX, J., in Gokul Chand v. Bhika (1914) 12 A.L.J. 387. All the decisions of other High Courts in favour of the decree-holders proceed on the ground that no period of limitation is fixed for an application by the decree-holder to certify a payment and that no particular form of certificate is prescribed. Both these arguments are noticed by KNOX, J., who holds that Order XXI, Rule 2, clearly contemplates a formal proceeding consisting of two steps, first an application by the decree-holder informing the court of the payment, and, secondly, a formal order of the court recording the payment. This proceeding must be separate from and prior to the execution proceeding in which it is desired that the payment should be recognized. The second decision is that of PIGGOTT, J. in Bhajan Lal v. Chheda Lal (1914) 12 A.L.J. 825. He refers to the contention that an execution application may be treated as an application certifying a payment as an ingenious suggestion, and follows without hesitation the view taken in Gokul Chand v. Bhika (1914) 12 A.L.J. 387. The third case is that of Chattar Singh v. Amir Singh (1916) I.L.R. 38 All. 204. This is a decision of Richards, C.J., and Rafiq, J., upholding in Letters Patent appeal a decision of Sir Edward Chamier. This case was absolutely on all fours with the case now under appeal. The decree was an instalment decree and unless the statement in the execution application could be treated as a compliance with Order XXI, Rule 2, the decree was time-barred. The Calcutta and Madras authorities were considered and it is stated that whatever may be the practice in those provinces, the practice in the Agra province is to require a payment to be certified and recorded in a separate proceeding prior to the execution application, that this is in accordance with the spirit of Order XXI, Rule 2, and that if the court which is called on to execute the decree finds that no payment has been certified and recorded when the application is made to it, it is bound to assume that no payment has been made and to dismiss the application. We think that this view is correct and that the point of time at which the court is called on to consider whether the payment has been certified or recorded is the moment when the application is made to it to execute the decree. It is objected that this is taking a very technical view, but if the intention of the law is plain, it is not in the public interest that it should be strained in any way in favour of the decree-holder. It is placing very great temptation in the way of the decree-holder, when he has kept silent as to an alleged payment and exposed the judgment-debtor to the risk of having to pay the amount over again so long as the decree remains effective, to allow him to come forward when it has become on the face of it time-barred and to escape the plea of limitation by stating in his execution application that subsequent payments have been made. It is true that he will have to prove the payments, but evidence of this kind is easy to bring forward and difficult to test, especially when the payments are alleged to have taken place nearly three years earlier. We may add that though no period of limitation has been prescribed for an application by the decree-holder to certify, the intention of the law appears to be that the payment should be certified within a reasonable time of its being made. It is primarily the decree-holder's duty to certify. If he fails to do so, Clause (2) of the rule allows the judgment-debtor to inform the court of the payment, and for the judgment-debtor's application a period of ninety days has been provided by Article 174 of the Limitation Act. We see no reason to differ from the view of the law which has prevailed in this Court ever since the year 1914, and we accordingly dismiss the appeal with costs.