(1) The only question in this second appeal is whether an acknowledgment by the surety would save the period of limitation as against the principal debtor. So far as the facts of the case go, no argument is open to the learned counsel for the appellant because the conclusions of the Court below being conclusions on questions of fact are binding on me in second appeal. The Court of fact has found that defendant I was the principal debtor and No. 2 was a surety and that the debt in question was incurred.
(2) The only contention raised and which is open to the learned counsel for the appellant is that of limitation. The debt was raised in July 1956. The suit was filed on the 1st of December, 1959, i.e., more than three years from the date of the loan. Limitation is sought to be saved on the plea that the surety acknowledged the debt in a letter, Exhibit I. A. This letter has been treated as acknowledgement of the debt by the Courts below and I am not prepared to accept the argument of the learned counsel for the appellant that this letter has no relation to the debt. But that does not solve the problem so far as the appellant is concerned, because he is the principal debtor. There is no appeal by the surety,. There is not acknowledgement as such by the principal debtor, nor is there any evidence on the record that the surety was acting as the agent of the principal debtor. The rule seems to be firmly settled that acknowledgement by one of the co-debtors is not acknowledgement on behalf of the other co-debtor. So also would be the case where a surety and a principal debtor are concerned.
There is a catena of cases under S. 20 of the Indian Limitation Act where part payment or payment of interest by the surety or by the principal debtor has been held to be nor enough to save limitation against the one or the other. In this connection, reference may be made to Gopal Daji v. Gopal Soni, ILR 28 Bom 248; Brojendra Kishore v. Hindusthan Co-operative Insurance Society, Ltd., ILR 44 Cal 978: (AIR 1918 Cal 707); Raghavendra Gururao v. Mahipat Krishna Sollapur, ILR 49 Bom 202: (AIR 1925 Bom 244); Abde Ali v. Askaran,. 84 Ind Cas 199: (AIR 1924 Nag 411); Jainarain Singh v. Parmeshar Murao, 132 Ind Cas 798: (AIR 1931 Oudh 310) and U Ba Pe v. Ma Lay, ILR 10 Rang 398 : (AIR 1932 Rang 88).
(3) On principle I see no difference why the same rule should not apply to an acknowledgement. Moreover the language of Section 19 of the Indian Limitation Act is very explicit. Section 19 is in these terms:
'19(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
(2) Where the writing containing an acknowledgement is undated, oral evidence may be given of the time when it was signed; but, subject the provisions of the Indian Evidence Act, I of 1872, oral evidence of its contents shall not be received.
Explanation I. * * * * Explanation II. For the purposes of this section 'signed' means signed either personally or by an agent duly authorised in this behalf. Explanation III. * * * *'
It will be apparent from the language of this section that the acknowledgement has to be by a party or person against whom the right is claimed. In the present case the debt is sought to be recovered both against the principal debtor as well as the surety. Therefore, the right is claimed against both. The acknowledgement is only by one. Therefore, the right will only be saved qua one and not qua the other by whom there is no acknowledgement.
(4) After giving the matter my careful consideration I am of the view that the contention of Mr. Bahri to the effect that the acknowledgement by the surety does not save the period of limitation as against the principal debtor must prevail. I would accordingly allow this appeal, set aside the judgment and decree of the Courts below as against defendant No. 1 only. The decree will stand against defendant No. 2, but in the circumstances of the case, there will be no order as to costs throughout so far defendant No.1 is concerned.
(5) Order accordingly.