1. The respondent obtained a decree against the petitioner. By agreement, the petitioner was to pay to the respondent Rs. 30 on the 26th of each month. Two payments seem to have been made within time. The payment due on 26th June, 1940, was paid on the following day and accepted by the decree-holder, who obviously waived the default. No other payment was made until nth September, 1940, when a cheque for Rs. 30 was given to the respondent by the nephew of the petitioner, who has been found by the Court below to have been the agent of the petitioner for that purpose. That cheque was in due course cashed. The respondent does not specifically say that he appropriated that payment towards the July instalment; but pleads that payment as saving limitation by virtue of the provisions of Section 20 of the Limitation Act. He has filed his execution petition within three years of that payment. If he had appropriated that payment to the July instalment, then the next instalment would not have been due until the 26th August, 1940, and his execution petition would have been in time; for the execution petition was filed on 26th August, 1943. That was not however the respondent's contention. The principal question considered by the Court below was whether the payment by cheque was a payment evidenced by writing. It held that it was.
2. Had it not been for an old decision of this Court in Mackenzie v. Thiruvengadathan I.L.R.(1886)Mad. 271 which was followed without discussion in Ramchander v. Chandi Prasad I.L.R.(1886)Mad. 271, I would have had no difficulty in holding that a payment by cheque was a conditional payment, subject only to realisation. Sir Lawrence Jenkins said in Kedarnath Mitra v. Dinabandu Saha I.L.R.(1915)CaL. 1043:
It seems to me clear that if a cheque be delivered to a payee by way of payment and is received as such by him, it operates as payment and is an extinguishment to that extent of the debt, though this is no doubt subject to a condition subsequent that if upon due presentation the cheque is not paid, the original debt revives.
In Mackenzie v. Thiruvengadathan I.L.R.(1886)Mad. 271 the learned Judges had to consider a payment by means of a cheque that had not been made by the debtor, but which had been endorsed over by him to his creditor. An endorsement would not amount to a payment acknowledged in the handwriting of the person making the payment; but the difficulty lies in the words used by the learned Judges in saying so. They said:
The cheque is only an order for payment and it does not evidence any payment at all.
Ramchander v. Chandi Prasad I.L.R.(1897)All. 307 was also a case of payment by an endorsed cheque. The learned Judges in the Calcutta case would probably not have followed Mackenzie v. Thiruvengadathan I.L.R.(1886)Mad. 271 even though payment had been made by an endorsed cheque; but they were content to distinguish it. Other High Courts have distinguished it or dissented from it. In other High Courts there is a unanimity of opinion that a payment by cheque made by the debtor in favour of the creditor is a payment which satisfies the condition of Section 20 of the Limitation Act; and I am not prepared to say that Mackenzie v. Thiruvengadathan I.L.R.(1886) Mad. 271, which did not have to consider such a case, laid down a different law.
3. If the cheque of 11th September, 1940, comes within the mischief of Section 20 of the Limitation Act, there can be no doubt that the petition was in time. The petition is dismissed with costs.