Atkinson, J.

1. This action is brought by the plaintiff to recover a sum of money alleged to be due for the payment of goods sold by the plaintiff to the defendants between the years 1908 and January 1914. The defendant filed a written statement but never appeared before the Court of the Subordinate Judge. A decree was passed against him ex parte. On appeal at the instance of the defendant, he raised for the first time the question of the Statute of Limitation. He had not, in his written statement, expressly pleaded that the action in whole or in part was barred by limitation, although one might imply from the words used in the written statement an expression of intention to show that the debt was barred. But the Statute was not expressly pleaded. On appeal he expressly raised the question of limitation, and the Judge decided the case on that basis.

2. Now the facts are very shortly as follows:--

"The plaintiff sold goods to the defendant, and on foot of the account for the goods sold payments were made from time to time by the defendant. When the payments were made, there was no expression of intention as to what particular part of the account or item of the account the payment so made was to be added or appropriated to. The payments that were made on account vary in amounts through different years; in February 1909 Rs. 20, on the 21st March 1910 Rs. 200 on the 25th November 1910 Rs. 1,000, an i so on. During the subsequent period from March 1911 to January 1914, Rs. 2,115 in all were paid by various part payments on foot of the general account.

The appellant's first point is, that under the provisions of section 20 of the Limitation Act, these part payments cannot be relied upon to take the case out of the operation of the Statute of Limitation, and that thus the debt due as calculated on the 4th March 1911 would have been barred before the institution of this suit, which was instituted on the 4th March 1914. And the defendant says, although I made payments, I am not bound, because it is not shown that the person who made the payments wrote in his own handwriting the acknowledgment of the payment so made by him, within the proviso of section 20 in the Limitation Act."

3. The facts appear to be, as stated in the uncontradicted evidence of the plaintiff, that the defendant made the payments alleged from time to time and that the entries of the payments that are in writing in the books of the plaintiff were made by the defendant's agent or mukhtear, and are in his handwriting. But it does not appear to be consistent with the evidence that the payment that was made was by the person who made the entry in the plaintiff's ledger. It is quite clear that the Statute requires that the person who made the payment should be the person who should sign the writing as evidence of the payment. We think that the law laid down in the Full Bench case reported as Mukhi Haji Rahmuttulla v. Coverji Bhuja 23 C. 546 (F.B.) correctly interprets the legal construction to be given to section 20.

4. Thus, in this case we are satisfied that there was no writing by the person who made the payment, that is, by the defendant in this case, to satisfy the requirements of section 20. In that aspect of the case the debt due on the 4th March would apparently be Statute barred.

5. Mr. Fakhruddin, on behalf of the plaintiff, urges that his client has a right, under section 60 of the Contract Act, to appropriate the payments that were made to the earlier debts, even though those debts might be Statute barred. I think, when you come to read sections 60 and 61 of the Contract Act, a very simple code of procedure is provided for, analogous in all particulars to the law of appropriation that prevails in England. If the debtor does not appropriate, and he has the first right, then the creditor may appropriates, and he may appropriate to any particular debt or to any particular portion of a running account. But if neither party appropriates, section 61 is an enabling section, which entitles the Court to declare that such payments shall be appropriated in discharge of the debts in order of time.

6. I only refer to the case of Gory Brothers & Co., Ltd. v. Owners of the Turkish Steamship "Mecca" (1897) A.C. 286 : 66 L.J.P. 86 : 76 L.T. 579 : 45 W.R. 667, for the purpose of showing that the law there laid down is in conformity in every respect with the enactments contained in sections 60 and 61 of the Indian Contract Act. Here in this case, there was undoubtedly a running account; payments were made extending over the entire period of that account from its inception to its end; and the question that arises now is, where neither party had made an express appropriation, whether we are to imply that the payments made shall be applied in discharge in the order of date in which the debts were contracted. We think that the plaintiff is so entitled, and I desire to refer to the case of Hooper v. Keay (1875) 1 Q.B.D. 178 : 34 L.T. 574 : 24 W.R. 485, to the decision of Mr. Justice Blackburn where he says: "The general rule is, that the party who pays the money has a right to apply that payment as he thinks fit. If there are several debts due from him, he has a right to say to which of those debts the payment shall be applied. If he does not make a specific application at the time of payment, then the right of application generally devolves on the party which receives the money. But there is a third rule, viz., that where one of several partners dies, and the partnership is in debt, and the surviving partners continue their dealings with a particular creditor, and the latter joins the transactions of the old and new firms in one entire account, then the payments made from time to time by the surviving partners must he applied to the old debt. In the present case the plaintiffs have blended the two accounts, and sent it in to Keay, striking a balance on the whole; consequently the subsequent payments of £10 and £28, which were made by the defendant Keay without appropriation by him, should be applied to the different items on the debit side of the account in order of date; and it follows that the whole of Draper's debt is paid off, and he is entitled to keep his verdict on the plea of payment.

7. Now, in this case, we think that the argument put forward for the plaintiff is right; there having been no express appropriation, all the payments that were made are to be applied in the order in which the debts were contracted. Section 61 directly supports that view,

8. Accordingly in the view we take we shall reverse the decision of the learned Judge. We allow the appeal and vary the judgment, and allow the plaintiff to have judgment for the sum of Rs. 2,820 without interest. The respondents are entitled to the costs of this appeal and to their costs in all the Courts below.

Jwala Prasad, J.

9. I entirely concur with my learned brother both in point of law and facts. The plaintiff is entitled to the price of the goods supplied to the defendant from March 1911 to the date of the suit. The payments made by the defendant during this period shall, under section 61 of the Contract Act, be appropriated towards the discharge of the debts antecedent to March 1911. The balance of any debt that may be due to the plaintiff prior to March 1911 is barred by limitation and is not saved by part payments from time to time of the debt, as the entries thereof are not in the handwriting of the person who made the payments, as required by the proviso to section 20 of the Limitation Act.