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Kaza Gangayya Vs. (Allada) Seshagiri Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad922; 159Ind.Cas.38
AppellantKaza Gangayya
Respondent(Allada) Seshagiri Rao and anr.
Cases Referred and Arunachalam Chetty v. Periasami Servai
Excerpt:
- .....to the court under order 21, rule 2(2) by a decree-holder of a payment made to him out of court, even if made in the form of an application, is not an 'application' within article 181, lim. act, so as to be barred unless it takes place within three years of the payment certified; nor is there any article which limits the time. further, certification under rule 2(1) can take place when execution of the decree is barred but for, the payment certified.3. this view has also been taken by our court in rajam ayyar v. anantaratnam ayyar 1916 mad. 958 and arunachalam chetty v. periasami servai 1921 mad. 163. in the result, the lower court's order is reversed and the civil revision petition is allowed with costs, i must here note that the respondents have not appeared in this.....
Judgment:

Venkatasubba Rao, J.

1. If the decree has become time-barred against the judgment-debtor, it must be held to be equally barred as against the surety. The question therefore is, has it become unenforceable against the judgment-debtor? The decree was passed on 4th August 1917. The first execution petition was presented on 15th March 1919. The second petition was put in on 16th August 1924; in that the decree-holder gave credit for Rs. 100 said to have been paid in 1921 by the judgment-debtor. The present application was filed on 6th December 1927.

2. The question that has really to be decided is, had the decree become barred when the second application was presented? The judgment-debtor's contention in the lower Court seems to have been, that although the part payment of Rs. 100 was made within three years from the date of the first petition, the certification having been made only on 16th August 1924 (the date of the second petition), the decree must be held to have become barred. This contention cannot prevail. As pointed out in Prakash Singh v. Allahabad Bank Ltd. 1929 P.C. 19, no limit of time is prescribed for certification by a decree-holder under Order 21, Rule 2(1), Civil P.C. So the point that matters is not when the payment was certified but when it was made. The case just quoted is directly applicable. The head-note runs thus:

Certification to the Court under Order 21, Rule 2(2) by a decree-holder of a payment made to him out of Court, even if made in the form of an application, is not an 'application' within Article 181, Lim. Act, so as to be barred unless it takes place within three years of the payment certified; nor is there any article which limits the time. Further, certification under Rule 2(1) can take place when execution of the decree is barred but for, the payment certified.

3. This view has also been taken by our Court in Rajam Ayyar v. Anantaratnam Ayyar 1916 Mad. 958 and Arunachalam Chetty v. Periasami Servai 1921 Mad. 163. In the result, the lower Court's order is reversed and the civil revision petition is allowed with costs, I must here note that the respondents have not appeared in this Court either in person or by counsel. Now that I have held that the lower Court's view of the law is wrong, it must deal with the application presented to it on its merits.


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