1. This is an appeal against the order of the Subordinate Judge of Tellicherry, in A.S. No. 300 of 1921, on E.P. No. 55 of 1921.
2. The decree-holder relies on certain pay-merits, made within three years of the date of the prior application, in order to save limitation the lower Appellate Court has found that the payment is true and that finding is not traversed.
3. It also finds that the payment cannot save limitation and this is the point for determination.
4. The decree is dated 1915. There was an arrest in 1917. On or about 25th January, 1918, Rs. 100 (Rupees one hundred only) was paid towards the decree debt, i.e., on 10th Makaram 1093. On 17th January, 1920, the decree holder applied for execution, in B.P. No. 55 of 1921 and the Munsif took this as a petition for certifying the payment of January, 1918 and found that this payment saved limitation.
5. There are two ways in which a decree-holder may save limitation. He may prove a payment which satisfies the requirements of Section 20 of the Indian Limitation Act; or, he may prove a step-in-aid of execution, within three years of his application, as laid down in Article 182, Clause 5. If the decree-holder, when applying for execution, wishes to rely upon Section 20, the fact that he has not certified the payment, until making his application, is no obstacle; cf. Rajam Aiyar v. Anantharatnam Aiyar (1916) 29 M.L.J. 669. In the present case, there would be no objection to applying Section 20, if its requirements were fulfilled; but as pointed out by the lower Appellate Court, they are not fulfilled and again this finding is not traversed.
6. But the appellant relies upon Article 182 and contends that the payments, certified in 1921, ranks as steps-in-aid on the date of payment, January, 1918. In support of this contention he relies upon Jotindra Kumara Das v. Gagan Chandra Pal (1919) 46 Cal. 22. The facts of that case are very similar to those of the present case. The decree was obtained on 9th May 1913. On 10th June and 26th November in 1914, payments were made, which did not fulfil the requirements of Section 20. On 6th June, 1917, the decree-holder applied to have these payments certified. On 9th June, 1917, he applied for execution pleading that the payments of 1914 were steps-in-aid of execution and so saved the bar of limitation. It was argued (page 23 of the Report) that the application of 6th June was a step-in-aid of execution and therefore the application of 9th June could not be time-barred. The Court held, following Lakhi Narain Ganguli v. Felamani Dasi (1914) 20 C.L.J. 131 that the payments afforded a fresh starting point, within the meaning of Article 182, Clause 5. But all that Lakhi Narain Ganguli v. Felamani Dasi (1914) 20 C.L.J. 131 lays down is that a payment may save the bat under Section 20. It had apparently never been held before, by any Court, that such payment ranks as a step-in-aid and it is difficult to understand how a payment out of Court can be considered a step-in-aid. The step-in-aid would be the petition, for certifying such payments. This point is rightly apprehended in Rustomji's commentary, on the Indian Limitation Act, Edition 3, page 773.
It is not, of course, the mere payment, but the application to certify the payment, which gives a fresh starting point of limitation, under Article 182, Clause 5. The headnotes of Jatindra Kumara Das v. Gagan Chandra Pal (1919) 46 Cal. 22 in so far as they assume that a mere payment without an application, would suffice for purposes of Clause 5, Article 182, are not correct.
7. Accordingly, the payment of January, 1918, cannot save the bar of limitation, either under Section 20, or under Article 182, Clause 5, of the Indian Limitation Act and the appeal must be dismissed with costs.