1. This is a defendant's petition against the order of the Small Cause Court Judge. Aska, which raises an interesting question of law as to from what date the period of limitation will begin to run as provided under Article 99 of the Limitation Act. The facts are rather simple. In T.S. No. 26 of 1950, the petitioners and the opposite party were the defendants. Admittedly defendants 1 to 4 were set down, ex parte in that suit. But nevertheless a joint decree was passed against the petitioners and the opposite party. When execution of that decree was levied by the decree-holder, the opposite party Sukuru Panda paid the entire decretal dues. Accordingly he filed the present suit against the petitioners (S. C. C. Suit No. 217 of 1954 of the Court of the Munsif of Aska) for contribution. The trial Judge decreed the suit on contest against the petitioners and ex parte against defendant 2. Thus, the only question I am called upon to decide is whether or not the suit is barred by limitation.
2. Before I proceed to deal with the question of law, it would be necessary, to state certain facts. The payment in the execution case admittedly was made by the opposite party to the process server on 23-9-51 while he went to serve certain processes. The payment order, however, in favour of the decree-holder, wag passed on 19-10-51 and the present suit by the opposite party was filed on 10-10-54. The learned trial Judge held that the time would begin to run from the date on which the payment was made to the decree-holder that is, 19-10-51 and accordingly he decreed the plaintiff's suit.
3. Mr. Murty, learned counsel on behalf of the petitioner, contended that the whole suit is barred by limitation, since it was filed beyond three years from the date of the payment. The only Article that is applicable to such cases is Article 99 of the Indian Limitation Act. It would be necessary at this stage, to quote the Article.
'99. Forcontributionby a party who has paid the whole or more than his share of the amount dueunder a joint decree or by a sharer in a joint estate who has paid the wholeor more than his share of the amount of revenue due from him-self and hisco-sharers.
The date of the payment in excess of the plaintiff's ownshare.'
The other articles in the Limitation Act using similar expressions are, Arts. 61, 81, 82 and 107. In those articles as is evident, the terminus a quo is the date of payment. Now, Col. I of Article 99 prescribes regarding a suit for contribution by a party who has paid the whole or more than his share of the amount due under a joint decree; Col. II provides the period of limitat on and Col. III speaks about the date from which limitation will begin to run that is, the date of the payment in excess of the plaintiff's own share.There does not appear to have been many reported cases on this point. The only case of the nature that was brought to my notice is reported in Gahar Ali v. Abdul Owahab, AIR 1928 Cal 361 (A). The facts in that case were that a deposit was made by the plaintiff in Court on 4th February 1920, but the money was actually withdrawn by the decree-holders on 14th February, 1920. A Division Bench of the Calcutta High Court in the circumstances, held that where payment is made by a co-judgment-debtor in Court and the payment is appropriated by Court in full satisfaction of decree, it is deemed to have accept-ed the payment on behalf of the decree-holder, it being looked upon as his agent or quasi agent, and, therefore, the limitation for a suit for contribution by such judgment-debtor against the other co-judgment-debtors begins to run from the date of acceptance of the deposit in Court. The criterion must always be whether or not the deposit made in excess of what is due by the person making the deposit did or did not remain under the control of the person making it. Therefore the question is when does the payer lose control of the money which he has paid either to Court or to one of its officers. In the instant case, admittedly, the money was paid to the Process-server on 23-9-51 and accepted on behalf of the decree-holder. True, the payment order was made on 19-10-51. It may well Be that clue to accident, or neglect or wilful omission on the part of the decree-holder the money in deposit in Court is not paid to him and was allowed to lie in Court for days or months. That would not certainly go to extend the period of limitation which according to the Statute begins to run from the date of payment. Order 21 of the Code of Civil Procedure lays down the mode of execution of decrees and orders and prescribes certain procedure by which the realisation is to be made. Rule 1 prescribes that:
'All money payable under a decree shall be paid as follows :
x x x x x x (c) otherwise as the Court which made the decree directs.'
There is another provision under Rule 38, which states
'Every warrant for the arrest of a judgment-debtor shall direct, the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost to which he is liable, be sooner paid.'
Thus, the Civil Procedure Code contemplates a particular mode in which the payment should be made and in this case the payment was made to a Process-server. Therefore, the payment cannot but be held to be a payment under Article 99. Nowhere the article mentions the person to whom the payment is to be made. Since the payment was made to an officer of the Court and accepted by him, and the payer thereby lost all dominion over it, it must doubtless be held to be a payment within the meaning of Article 99, and the limitation will begin to run from the date of such payment. The learned Small Cause Court Judge referred to a case reported in Ganesh Mahto v. Bhawan Mahto, AIR 1940 Pat 151 (B). What was decided in that case was that it is not safe to lay down any rigid formula for the purpose of determining the date of payment which always is a question of fact, but under the peculiar circumstances it was held to be the date when payment order was made to the decree-holder's pleader. The facts of that case as appears from the reportwere dissimilar to the facts of the present case and thus that case is easily distinguishable. Accordingly, in my view the limitation begins to run from the date on which the payment was made, whether to the Court or to any of its officers duly authorised to receive payment. Thus, the payment having been made on 23-9-51, the limitationwill run from that date. In that view of the matter, the suit is clearly barred by limitation. Accordingly. I would set aside the order of the learned Small Cause Court Judge, dismiss the suit, andmake this rule absolute, but since there is no appearance on behalf of the opposite party, there would be no order for costs.