Skip to content


Rebati Mohun Das and anr. Vs. AlauddIn Ahammed Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1927Cal29
AppellantRebati Mohun Das and anr.
RespondentAlauddIn Ahammed Chowdhury and ors.
Cases Referred and Eusuff Zeman Sarkar v. Sanchia Lal
Excerpt:
- .....1918.3. the learned vakil who has appeared for the appellants would seem to argue that the uncertified payment made on the 17th april 1919, was within three years of the 22nd december 1918, the date of the last certified payment and that the. uncertified payment made on the 13th april 1922, was within three years of the uncertified payment of the 17th april 1919, and that the application for execution made on the 17th july 1922, was within three years of the uncertified payment of the 13th april 1922, and that this would save limitation. he would contend that each of these uncertified payments gave a fresh starting point to the limitation and in support of his contention he would rely upon the cases of jatindra kumar das v. gagan chandra pal [1919] 46 cal. 22 and eusuff zeman.....
Judgment:

Cuming, J.

1. The facts of the case out of which this appeal arises are as follows : The present appellant obtained a decree against the respondents on the 15th of July 1916. Certain payments were made towards the satisfaction of the decree on the 29th of November 1916, 3rd October 1917, and 22nd December 1918, and these payments were certified to the Court. It has been held that certification of payment to the Court is a step in aid of execution so as to save limitation under the provisions of Article 182, Sub-clause (5) of the Limitation Act. Speaking for myself I feel considerable difficulty in holding that a certification of payment by a judgment-debtor is an application to the Court to take some step in aid of execution. Speaking for myself I should look upon it as merely a statement to the Court that something had been done and' not an application to the Court to do something. However, so far as the present appeal is concerned it is not necessary to decide this point. It may be taken for the purpose of this appeal that certification of payment on the 22nd December 1918 was a step-in-aid of execution. The appellant then alleges that further payments were made on the 17th April 1919, and the 13th April 1922. These payments were not certified to the Court. On the 19th July 1922, he applied for execution of the decree.

2. Both the lower Courts have found that this application was time barred as it was not made within three years of the last steps in aid of the execution, namely, the certification of payment made on the 22nd December 1918.

3. The learned vakil who has appeared for the appellants would seem to argue that the uncertified payment made on the 17th April 1919, was within three years of the 22nd December 1918, the date of the last certified payment and that the. uncertified payment made on the 13th April 1922, was within three years of the uncertified payment of the 17th April 1919, and that the application for execution made on the 17th July 1922, was within three years of the uncertified payment of the 13th April 1922, and that this would save limitation. He would contend that each of these uncertified payments gave a fresh starting point to the limitation and in support of his contention he would rely upon the cases of Jatindra Kumar Das v. Gagan Chandra Pal [1919] 46 Cal. 22 and Eusuff Zeman Sarkar v. Sanchia Lal [1916] 43 Cal. 207. At most these decisions would support the proposition that if a payment be made although uncertified within three years of the last certified payment and that this payment was itself certified within three years of the date of payment it would save limitation. With great respect to the learned Judges I have considerable difficulty in accepting the correctness of this decision. Hoever, the principle laid down in those cases obviously does not apply to the present case, because admittedly the payment of the 17th April 1919, was not certified to the Court within three years of the date of payment and the payment of the 18th April 1922, was not made within three years of the date of the last certified payment. It is therefore clear that the judgment of the lower appellate Court is right and that the application for execution is barred by limitation.

4. The appeal, therefore, fails and must be dismissed with costs. Hearing free three gold mohurs.

B.B. Ghose, J.

5. I agree that the appeal should be dismissed on the finding of the lower appellate Court that the payments of the 17th April 1919, and 13th April 1922, were not certified. The application of the 19th July 1922, for certifying the payment made on the 13th April 1922 would not save limitation.


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