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Mukhi Haji Rahmuttulla Vs. Coverji Bhuja - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal546
AppellantMukhi Haji Rahmuttulla
RespondentCoverji Bhuja
Excerpt:
limitation act (xv of 1877), section 20--part-payment of principal of debt--'person making the same'--mode of creating new period of limitation by part-payment. - .....of haji hossein ismail, is not a sufficient writing within the proviso to section 20 of the limitation act, the principle affirmed by the full bench being that the hand-writing must be the hand-writing of the person making the payment.5. a copy of the full bench reference and full bench judgment will be sent with this answer to the court of small causes which will dispose of the question of costs of this reference, including the costs of the hearing before the full bench.
Judgment:

Pigot, J.

1. We think the question referred to the Full Beach in this case must be decided in the negative; that is to say, that the decision of the High Court in the Small Cause Court Reference No. 2 of 1885 is, in our opinion, not correct. It appears to us that the terms of the proviso to Section 20 of the Limitation Act are imperative. The new period of limitation is to be computed from the time when the payment was made, provided that, in the case of part-payment of the principal of a debt, the fact of the payment appears in the hand-writing of the person making the same. Words more express, we think, could not be used. They appear to us to negative the supposition that the handwriting of another person, however authorised by him, who makes the payment, could be contemplated by that proviso. As has been said in the order of reference, it appears to us that the intention of the section must be, so far as possible, to exclude oral evidence and to substitute for it the real evidence furnished by the hand-writing of the person making the payment; and that it is the handwriting of the person making the payment, which is required as an essential condition to the operation of that part of the section which provides for the exemption from limitation. We therefore hold that in this instance the entry was not a sufficient writing within the proviso to Section 20 of the Limitation Act. With reference to the Madras cases we only desire to say that we do not deal with those cases in any way; they are outside the subject of this case.

2. The costs of this hearing will be part of the costs in the reference made by the Small Cause Court Judge, and will be dealt with by him.

3. On the 3rd March 1896 the learned Chief Justice (Sir W. Comes Petheram, Knight) and Justices Pigot and Macpherson sat to determine the Small Cause Court Reference in accordance with the foregoing judgment of the Full Bench.

4. Their Lordships' judgment after stating the facts of the case referred, was as follows:

The answer, therefore, which we give to the question put to us by the learned Judge of the Small Cause Court is that the entry of payment, as made in the book of Haji Hossein Ismail, is not a sufficient writing within the proviso to Section 20 of the Limitation Act, the principle affirmed by the Full Bench being that the hand-writing must be the hand-writing of the person making the payment.

5. A copy of the Full Bench reference and Full Bench judgment will be sent with this answer to the Court of Small Causes which will dispose of the question of costs of this reference, including the costs of the hearing before the Full Bench.


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