1. The second defendant is the mother of defendants 3 to 5. The husband-of the second defendant, the father of defendants 3 to 5, and the first defendant executed a promissory note in favour of the plaintiff-petitioner. Within the period of limitation, after the death of the second defendant's husband, first defendant made a payment. This suit was brought within three years of that payment but more than three years from the execution of the note. The first defendant was clearly liable; but the more difficult question was whether defendants 2 to 5 were liable also or whether the suit was barred as against them. That point was decided in favour of the defendants 2 to 5 by the Subordinate Judge of Palghat.
2. There can be no doubt that it is well established in this High Court that any acknowledgment made under Section 19 by one person does not save limitation against any other persons liable under the note, whereas a payment made under Section 20 saves limitation as against all those liable under the note. I am unable to see any great difference in the wording of Sections 19 and 20 which would account for this difference in the law applying to acknowledgments and payments. The earlier Indian decisions on the subject seem to have been based largely on the English law; and the decisions to which I have been referred assume the difference between Sections 19 and 20 and follow earlier cases.
3. Section 21(2) of the Limitation Act says:
Nothing in the said sections (Sections 19 and 20) renders one of several joint contractors,...chargeable by reason only of a written...payment made by...any other or others of them.
4. Reading Sections 20 and 21 together, it would follow that a payment saves limitation against all the debtors unless the debtors are co-contractors. It has been laid down in a number of cases, Narasimha Rama Aiyar v. Ibrahim (1928) 56 M.L.J. 630, Lokandha Naiko v. Lokhono Naiko (1919) 127 I.C. 641, and Pangudaya Pillai v. Uthandiya Pillai : AIR1938Mad774 , that a payment by an heir saves limitation against other heirs.
5. The position in this case is rather peculiar. There is no' payment by one heir; but there was a payment by a joint contractor. At the time when this payment was made, the other joint contractor was dead and, strictly speaking, there was no other joint contractor to whom Section 21(2) could directly apply; but defendants 2 to 5 are sought to be made liable because they are the heirs of the other joint contractor. Their liability depends upon the liability of the person whose heirs they are. That other person was a joint contractor and defendants 2 to 5 represent his estate. I am therefore of opinion that this payment made by the first defendant does not save limitation against defendants 2 to 5.
6. The petition is accordingly dismissed with the costs of the contesting respondent.