Skip to content


Gahar Ali Houladar Vs. Abdul Owahab Sikdar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1928Cal361
AppellantGahar Ali Houladar
RespondentAbdul Owahab Sikdar and ors.
Cases ReferredYinke Supaya v. Maung Kiu
Excerpt:
- .....to deposit the decretal amount as prayed.2. this order was followed by another order of the same date:money deposited by judgment-debtor 10 and challan filed. dismissed on full satisfaction.3. now on these facts the question that arises is whether the payment in court or deposit in court to the credit of the decree-holder and accepted by the court was a payment within the meaning of article 99, col. 3. in my judgment the deposit or credit in the circumstances, and in view of the order passed by the court, must me taken to be a payment within the meaning of that article, the money was deposited in court to the credit of the decree-holder and it was accepted by the court on behalf of the decree-holder and the decree was satisfied in full.4. as i have said, the article does not mention.....
Judgment:

Suhrawardy, J.

1. The plaintiff and the defendant were cosharers in a certain taluk. The landlords of the taluk obtained a decree for rent and when the property was advertised for sale the plaintiff deposited the entire decretal amount in Court which was accepted by the Court and the landlords' decree was recorded as satisfied. The deposit was made by the plaintiff in Court on 4th February 1920, but the money was actually withdrawn by the decree-holders on 14th February 1920. The present suit for contribution by the plaintiff against his cosharer, the defendant, was instituted on 15th February 1923, the 14th February being a holiday. The question that arises in this case is whether the suit is in time. The Courts below have differed on this point, the lower appellate Court being of opinion that the period from which limitation should be reckoned is the date on which the decree-holder withdrew the amount, namely the 14th February 1920. In this view it held that the plaintiff's suit was not barred by limitation. The Munsiff, on the other hand, was of opinion that time ought to be calculated from 4th February 1920, the date on which the money was deposited by the plaintiff. In this view he held that the suit was barred by limitation and dismissed it. The question involved does not appear to have ever come directly up for consideration in any Court in India so far as the reported authorities go. The simple question that we are called upon to decide is as to from what date in the circumstances of this case the period of limitation should be counted as prescribed by Article 99, Lim. Act. Column 3 of that article says that the time should be computed from the date of the payment in excess of the plaintiff's own share. There are a few other articles is the Limitation Act in which time runs from the date of payment, for example, Articles 61, 81, 82 and 107. In all these articles the terminus a quo is laid down as the date of the payment. Column 1 of Article 99 says that a suit for contribution by a party who has paid the whole or more than his share of the amount due under the joint decree, etc., etc. Neither does column 1 nor column 3 say clearly about payment to any particular person. The word 'payment' in Column 3 should be read as conveying the same sense as the words 'has paid' in column 1. The appellant argues that the payment is complete as soon as the amount is put into the Court to the credit of the decree-holder. The respondent, on the other hand, contends that there was no payment before the decree-holder drew out the amount from Court. Both of these extreme views may not be correct. But the facts of this case clearly support the contention of the appellant. The money was deposited on 4th February 1920 by means of a challan the first column of which mentions the name of the plaintiff as the person on whose behalf the deposit was made. Column 2 mentions the name of the person to whose credit the amount was to be placed in the books of the Court, namely the decree-holder. Column 3 gives the number of the execution case and the names of the decree-holder and the judgment-debtor. Column 4 contains the particulars of receipt as the claim, with costs, due to the decree-holder. The following column mentions the amount deposited. On 4th of February the following order was passed by the Court in which the money was deposited:

Judgment-debtor : 10 is permitted to deposit the decretal amount as prayed.

2. This order was followed by another order of the same date:

Money deposited by judgment-debtor 10 and challan filed. Dismissed on full satisfaction.

3. Now on these facts the question that arises is whether the payment in Court or deposit in Court to the credit of the decree-holder and accepted by the Court was a payment within the meaning of Article 99, Col. 3. In my judgment the deposit or credit in the circumstances, and in view of the order passed by the Court, must me taken to be a payment within the meaning of that article, The money was deposited in Court to the credit of the decree-holder and it was accepted by the Court on behalf of the decree-holder and the decree was satisfied in full.

4. As I have said, the article does not mention the person to whom it should be made. The question should be looked at from the standpoint as to whether the payment into Court by the plaintiff was a payment within the meaning of the law or a mere revocable deposit. I think that as the payment was made by the plaintiff of the decretal amount, and as he lost all dominion over it, it must be taken to be payment by him within the article. There is the further fact in this case that the payment made by the plaintiff was appropriated by the Court in full satisfaction of the decree, that is, in payment of the decree-holder's due. The Court in this sense may be looked upon as an agent or quasi-agent of the decree holder. It took the money on behalf of the decree-holder, employed it for the purpose for which it was deposited and held it on behalf of the decree-holder. It accordingly, in my opinion, makes no difference when the decree-holder withdraws the amount. It cannot be questioned that if the decree-holder were present on the day when the deposit was made he could have withdrawn the amount. To hold otherwise, Damely, that the period of limitation should run from the date when the decree-holder withdraws the amount, would be to make the cause of action depend on the act of a third party who may indefinitely postpone it. In Apurba Krishna Roy v. Chunder Money Debt [1900] 10 C.W.N. 354 (F.B.), it was held that there was no time limit for a decree-holder to withdraw the amount deposited in Court to his credit. In that case, as in the case of Hem Chunder Chaudhury v. Brojo Sundari Debi [1882] 8 Cal. 89, the question was whether any limitation affects the right of the judgment-creditor to withdraw a sum deposited by the judgment-debtor. The-learned Judge remarked that the money so deposited could be taken by the creditor at any time after the deposit. In that particular case the money remained in Court for fifteen years. If effect is given to the contention of the respondent, that time should run from the date1 on which the money was withdrawn by the decree-holder it would seem that if the decree-holder does not draw the amount and allows it to remain in Court for ever the plaintiff can have no right of contribution against his co-judgment-debtor. This question seems to me to be too absurd to maintain.

5. As I have stated there are no reported cases directly in point, but there are some cases in which, with reference to the particular facts of those cases, the word payment, as appears in Article 99, has been construed. In Sakhamoni Chaudhurani v. Ishan Chunder Roy [1898] 25 Cal. 844 the facts were that a decree for eighty thousand rupees was obtained against the plaintiff. The plaintiff moved the High Court to stay its execution. It was ordered that such stay would be made if the plaintiff deposited a sum of fifty thousand rupees in the Court below and this was done. It was subsequently, on 3rd April 1885, withdrawn by the judgment-creditor. On these facts the Judicial Committee, without examining the point, accepted the view taken by the Court below that the cause of action arose on 1st April 1885. This case does not settle the point as it was not raised in it and it was not considered by their Lordships. On the other-hand, on the facts of that case, it, is clear that the money was not deposited to the credit of the decree-holder so that dominion over it had not passed from the judgment-debtor to the decree-holder who could withdraw it at any time he pleases. In Badha Kristo Balo v. Rup Chunder Nandi 3 C.L.R. 480 on 1st March 1873 the plaintiffs in that case, who were judgment-debtors in a previous execution case, made an application to the Court stating that a certain sum was in deposit to their account in another Court and praying that the executing Court would send for as much of the amount as would be necessary to satisfy the decree. The money was received by the executing Court on 1st April 1873 and paid over on that date to the decree-holder. It was held that time ran in that case from the 1st April 1873, when the money was received by the executing Court and paid over to the decree-holder, and, therefore, the suit, which was a suit for contribution instituted on 17th March 1876, was in time. This case does not help us in the examination of the present question, In Fuckoruddin Mohamed Ahsan v. Mohim Chunder Chaudhury [1879] 4 Cal. 529 the plaintiff brought a suit for contribution stating that the cause of action arose on 7th June 1873, on which date his property was sold in satisfaction of a joint debt. The suit was instituted on 5th June 1876. The plaint was returned to the plaintiff for amendment by inserting the sums the plaintiff was entitled to get from each of the defendants. The plaint was re-filed on 17th July 1876. On the objection as to limitation the plaintiff contended that his cause of action did not arise as was stated in the previous plaint on the date of the auction sale of the property, but on the date on which the sale proceeds were paid away to the decree-holder. The learned Judges upheld the view and remarked:

Upon the facts stated in the plaint it is clear that the cause of action in the present case arose when the sale proceeds were drawn out of Court by the decree-holder.

6. The report does not sat whether the sale proceeds were appropriated before they were withdrawn by the decree-holder in the way in which it has been done in this case. The point of law, as it has been placed before us, did not arise in that case in this form and was not considered.

7. In the case of Annanda Mohan Roy Chaudhury v. Maniruddin Mohammad [1916] 36 I.C. 392, which is not to be found in any of the authorized reports, the view expressed lends support to the opinion I have formed in this case. The decision was in appeal from Original Order No. 367 of 1913 by N.R. Chatterji and Sheepshanks, JJ., and it was held therein that, under Article 61, Lim. Act, time should be calculated from the date on which the money paid is accepted by the Court and not from the date on which it is deposited in the Court. In that case deposit was made on 5th November 1908 by the plaintiff with an application to the effect that the money might be paid over to the decree-holder. The Court did not pass any order upon that application on that date and directed the matter to stand over till the 14th November for orders. On that date the Court directed the amount to be received and held that the decree was fully satisfied. It was held that there was no payment of money until the Court accepted the money on 14th November and their Lordships supported their view by remarking that, so long as it was not accepted by the Court, it was open, to the plaintiff to withdraw the amount. They recorded their opinion in these words:

We think that payment under Article 61 mean3 payment either to the person to whom it is to be made or into the Court on behalf of such person.

8. The facts of that case and the opinions expressed by the learned Judges apply to the circumstances of the present case. The question now before us arose before the Additional Judicial Commissioner of Upper Burma in Yinke Supaya v. Maung Kiu [1920] 3 U.B.R. 264. There the surety had satisfied the decree obtained by the creditor and sued the principal for recovery of the amount under Article 81. The question arose as to what should be taken as the date when the surety paid the creditor within the meaning of Article 81, Lim. Act. The learned Judge held that limitation began to run from the date on which the surety paid the money into Court and not from the date on which the creditor took it out.

9. I may add that the words of the Limitation Acts of 1871 and 1877 were, the date of the plaintiff's advance in excess of his own, but I do not think that by substituting 'payment' for the word 'advance' the legislature intended any change of law.

10. On giving my earnest consideration to the question raised and argued at great length before us I have come to the conclusion that limitation in this case should be reckoned from the date on which the money was deposited by the plaintiff in Court and the Court appropriated it to the satisfaction of the decree. In this view the plaintiff's suit must be held to be barred by limitation.

11. The appeal is accordingly allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored with costs in all the Courts.

Cammiade, J.

12. I agree. The plaintiff, in order to obtain extension of the period of limitation allowed to him under Article 99, Lim. Act seeks to take advantage of the fact that ten days elapsed between the date on which the money was put in by him and appropriated by the Court to the satisfaction of the decree and the date of the actual withdrawal of that money by the decree-holder. As my learned brother has pointed out, if the plaintiff's contentions were correct, it is to be feared that many persons would be precluded from suing persons jointly liable with them for sums paid by them in excess of the money due from them merely on account of the fast that the decree-holder had failed to withdraw the money from Court. It is conceivable that from many cause3, either accidental or due to neglect or wilful omission on the part of the decree-holder, the money in deposit in Court and appropriated to the satisfaction of the decree may remain unpaid to the decree-holder for a number of years; and, if the contention of the plaintiff-respondent were correct as long as the money was not withdrawn by the decree-holder, the person who made the deposit would have no right to recover anything from his co-debtor. This would be an entirely absurd position. The criterion must always be whether or not the deposit made in excess of what is due by the person making the deposit did or did not remain under the control of the person making it. Obviously, when the Court has passed an order to appropriate the money deposited to the satisfaction of the decree, that money ceases to be under the control of the person making the deposit. After such an order has been made it would no longer be open to the depositor to apply for withdrawal of that money. The only person entitled to apply for its withdrawal would be the decree-holder or any other person entitled through him. In the present case such an order for appropriation was passed by the Court on 4th February, the date on which the deposit was made, and from that date limitation must run under Article 99, Lim. Act. I, therefore, agree that this appeal should be allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //