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Madan Mohan Banikya Vs. Harulal Kundu and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal643,64Ind.Cas.72
AppellantMadan Mohan Banikya
RespondentHarulal Kundu and anr.
Cases ReferredBireswar Mookerjee v. Ambika Charan Bhattachariee
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 2 - payment out of court--certification--limitation--limitation act (ix of 1908), section 20, applicability of. - 1. the question involved in this appeal is whether the application for execution of an instalment decree is barred by limitation. the decree was passed on the 21st of december 1919 (sic), and provided for the payment of rs. 800 odd in sis instalments, namely, rs. 141 odd for each instalment, from 1322, b.s., the whole amount to be due with interest in, default in payment of any instalment. the application for execution of the decree was made on the 1st april 1919, that is, more than three years after the date of the decrees. but the decree holder relies upon three payments, namely, the instalments for 1322 and 1323 in full and rs. 100 (only) in respect of the instalment of 1324. the court below held that the payments were proved, and that the application for execution was not barred by.....
Judgment:

1. The question involved in this appeal is whether the application for execution of an instalment decree is barred by limitation. The decree was passed on the 21st of December 1919 (sic), and provided for the payment of Rs. 800 odd in sis instalments, namely, Rs. 141 odd for each instalment, from 1322, B.S., the whole amount to be due with interest in, default in payment of any instalment. The application for execution of the decree was made on the 1st April 1919, that is, more than three years after the date of the decrees. But the decree holder relies upon three payments, namely, the instalments for 1322 and 1323 in full and Rs. 100 (only) in respect of the instalment of 1324. The Court below held that the payments were proved, and that the application for execution was not barred by limitation. The judgment-debtor has appealed to ibis Court, and the question to be determined is whether the payments, not having been certified to the Court before the application for execution was made, the application for execution was barred by limitation.

2. It has been held in a number of cases that payments may be certified in the application for execution of the decrees. See Lakhi Narain Ganguli v. Belamoni Dasi 27 Ind. Cas. 11 : 20 C.L.J. 13127 Ind. Cas. 11 : 20 C.L.J. 131, Eusuffzeman Sarkar (Khatibannessa Bibi) v. Banchia Lal Nahata 34 Ind. Cas. 606 : 20 C.W.N. 272 : 23 C.L.J. 390 : 43 C. 207, Bahuballav Roy v. Jogesh Chandra Banerjee 60 Ind. Cas. 242 : 23 C.W.N. (sic) and Elahi Buz v. Nawab Lal 50 Ind. Cas. 364 : 4 P.L.J. 159 : (1919) Pat. 260. The part payments and the certification must, however, be made before the application for execution is barred. See the cases cited above, and Jotindra Kumar Das v. Gagan Chandra Pal 45 Ind. Cas. 903 : 46 C. 22 and Harendra Chandra Bhattacharjee v. Gagan Chandra Das 35 Ind. Cas. 177 : 22 C.W.N. 325. It was pointed out in the last case that although the decree-holder may either apply to certify payment before the execution or may do so in his application for execution of the decree, the provisions of Section 20 are in no way affected, In some of the cases acted above the payments were made by way of interest, or if there was any part payment of the principal it appeared in the handwriting of the debtor, and it was held that the application was not barred.

3. In Bahuballav Roy v. Jogesh Chandra Banerjee 60 Ind. Cas. 242 : 23 C.W.N. (sic) the application for execution was held to be barred by limitation. It does not appear that the payments were made within three years of the date of the decree and within three years before the application for execution. The learned Judges affirmed the principle that the decree holder can certify payments at any time, but that the certification must take place within such time as is required to save the application from being barred by limitation. Fletcher, J., who was a party to the decision was also a party to the decision in the case of Lakhi Narain Ganguli v. Felamoni Dasi 27 Ind. Cas. 11 : 20 C.L.J. 131, in which it was held that a part payment before the decree is barred, saves limitation.

4. In the case of Bireswar Mookerjee v. Ambika Charan Bhattachariee 42 Ind. Cas. 472 : 45 C. 630 the decree was made on the 24th of November 1909 and the application for execution of the same was presented on the 7th of June 1916. Two payments were alleged to have been made in 1912 and 1913, respectively, neither of which was certified to the Court. The learned Judges held that the payments or adjustments could not be recognised by the Court executing the decree. They pointed out that Order XXI, Rule 2, Clause (8), of the Code of the 1908 is different in terms from Section 258 of the Code of 1882, which provided that a payment which had not, been certified, could not be recognised as a payment or adjustment of the decree, while the present Code provided that a payment which has not been duly certified shall not be taken into account by any Court executing the decree, and that this alteration in the language justifies the inference that an uncertified payment or adjustment cannot now operate to prolong the period of limitation for an application for execution of a decree under the Limitation Act.

5. There is no doubt that unless the payment is certified, such payment cannot be taken into, account by the Court executing the decree. The question, however, whether the certification can be made, not only at the time the payment is made, but subsequently, that is, at any time before the application for execution is barred, was not considered in that case. Moreover, in that case the judgment-debtors were infants and the persons who were said to have made the payments were not the lawful guardians of the minors within the meaning of Section 21 of the Limitation Act. That being so, they were really no payments which could save limitation.

6. In the present case, on the other hand, the payments are evidenced by letters written and signed by the judgment-debtor himself, they were made within throe years of the decree and within three years of the present application for execution, and the payments were certified by a petition presented' on the 26th July 1919, which was made a part of the application for execution. Having regard to the facts of the present case and the weight of authority on the point, we think the application is not barred by limitation. The appeal must accordingly be dismissed with costs, two gold mohurs.


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