Rowland, J.The question for decision is whether an application for execution presented by the respondent was barred by limitation. Balaram Bhagat on 1st October 1913, mortgaged three properties to Pasupati Banerji, respondent 1. Subsequently he sold one of the properties to Richha Ram father of appellant Badri Das. Balaram Bhagat died and his property passed to his grandson Deb Narayan Bhagat, respondent 2. Pasupati sued on his mortgage impleading Deb Narayan Bhagat and Richha Ram as defendants and obtained a preliminary decree on 17th September 1920, which was made final on 2nd August 1921. His first application to execute the decree was presented on 20th March 1925, alleging that a payment of Rs. 100 towards interest had been made by Deb Narayan Bhagat on 9th May 1924, and duly endorsed on the back of the copy of the mortgage decree and that he was entitled to execute his decree against both the judgment debtors within three years of that payment. Notices were issued to the judgment-debtors but further steps were not taken and the execution was dismissed for default on 29th April, 1925.

2. A second application was presented on 3rd December, 1925, which has led eventually to the present appeal. The execution proceeded to sale of all three properties on 7th March 1926; they were purchased by the decree-holder Pasupati Banerji; the sale was confirmed on 20th April 1926 and delivery of possession was taken on 8th September 1926. Richha Ram on 29th September 1926 presented two objections, one was under Order 21, Rule 90 for setting aside the sale of the property which was in his hands, that was numbered as Misc. Case No. 94 of 1926, the other was u/s 47, Civil P.C. and the contention was that the execution commenced on 20th March, 1925, was beyond time. That objection was numbered as Misc. Case No. 93 of 1926 and has given rise to the present appeal. It was at first dismissed by the Munsif on the ground that Richha Ram not having taken an objection in the former execution case could not raise this point now being barred by the principle of res judicata.

3. The District Judge dismissed an appeal from that decision, but on second appeal the case was remanded for disposal according to law after coming to a finding on the facts. It has now been held that the payment of Rs. 100 was in fact made on 9th May, 1924, and the District Judge has held on the authority of Rajtilak Narayan Sur Vs. Mufizuddi Topadar, that the payment was effective to give a fresh start to limitation not only against the successor of the mortgagor who made the payment but also the purchaser of the equity of redemption in lot No. 1 of the property. During the above proceedings Richha Ram the purchaser of the equity of redemption died and is represented now by his son Badri Das the appellant.

4. In appeal the contention is that the payment kept the debt alive only against the person making it and, therefore, the decree was only capable of execution against the property in the hands of Deb Narayan Bhagat. Reliance is placed on Jogesh Chandra Saha and Another Vs. Monindra Narain Chakravarty and Others, and Sarab Nath Das v. Top Ojha [1917] 43 IC 351. We do not understand these decisions as laying down any general proposition that a payment by one debtor can only keep alive the liability as against himself. So wide a proposition would be contrary to principles which are too well established to be now called in question. In Krishna Chandra v. Bhairab Chandra Saha [1905] 32 Cal 1077 where a payment had been made by the mortgagor and it was contended that this did not give a fresh start to limitation as against a subsequent transferee of the equity of redemption, Maclean, C.J. rejected that contention, following the principle of Chinnery v. Evans [1864] 11 HLC 115 and observing

that a mortgagee cannot by the act of the parties entitled only to the equity of redemption, be deprived, of his right to report to any estate comprised in his mortgage so long he has not released, or given it up and so long as that mortgage is legally kept alive.

5. This decision was followed in Domi Lal Sahu v. Roshan Dobey [1906] 33 Cal 1278 where Maclean, C.J., after quoting from S: 20 Limitation Act, observed that:

the words of the section are general and plain when the Legislature intends that a fresh period of limitation is to operate against certain persons only it says so in distinct terms: see Section 18 of the, Act. There is nothing in the section to indicate that the extension is only to operate against the persons making the payment.

These two decisions, were approved by a Division Bench of the Allahabad High Court in Raushan Lal v. Kanhaiya Lal AIR 1918 All 61 where it was held that the view taken is in agreement with the observations of Lord Hobhouse in Lewin v. Wilson [1886] 11 AC 639 pointing out the distinction between acknowledgement and payment:

payment is certain to be made only by those who have some duty or interest to pay. As regards the recipient, so long as he is paid according to the intention of the contracting parties, he is in full enjoyment of his bargain and is not put upon any further assertion of his rights.

6. In the Madras High Court in Askanam Sowcar v. Venkataswami AIR 1921 Mad 102 Walls, C.J. and Ramesam, J. dealt with the case of a payment made by the purchaser of the equity of redemption, and held that such payment extended limitation not only against the person making it but also against the original mortgagors citing observations of Lord Westbury in Chinnery v. Evans [1864] 11 HLC 115. In Sarada Charan v. Durgaram De [1910] 87 Cal 461 which was a case turning on the question whether, a mortgage debt incurred by the father of the defendants was kept alive by a payment made by one of them, it was said "the entire equity of redemption descended to the sons of the mortgagor, they were jointly liable for the debt not as co-mortgagors but as representing the sole mortgage their father.

7. There is nothing in Section 20, Limitation Act, to warrant the belief that the extended period of limitation, is intended to operate only against the persons making the payment." In the Madras High Court again it was held in Velayudam Pillai v. Vaithyalingam [1912] 17 IC 619 that:

Section 20 requires that the payer should be one liable to pay the debt and provides that the result of the payment would be to give to the creditor a fresh period of limitation from the date of the payment. It does not restrict the benefit accruing to the creditor with respect to his debt to his remedy against the payer alone. According to the language of the section the debt being kept alive, the result must be to make it enforceable against anyone liable for it.

Rajtilak Narayan Sur Vs. Mufizuddi Topadar, follows the decisions in Krishna Chandra v. Bhairab Chandra [1905] 32 Cal 1077 and Domi Lal Sahu v. Roshan Dobey [1906] 33 Cal 1278: payment by a mortgagor keeps a mortgage-debt alive against the purchaser of the equity of redemption.

8. This decision was followed in Achola Sundari v. Doman Sundari AIR 1926 Cal 150 . It was again asserted that "the person liable to pay" in Section 20, Limitation Act, dose not mean the entire body, of persons liable to pay the debt but any individual who would be liable for the whole debt and this decision was approved in the Allahabad High Court in Ibrahim and Another Vs. Jagdish Prasad . I now turn to consider the cases in which the principle has not been applied. In Gopal Daji v. Gopal [1904] 28 Bom 248 , Jenkins, C.J., dealing with the question whether payment of interest by a debtor would give a fresh start for limitation against his surety also, answered the question in the negative holding that the suretys debt was not the same debt as the debt of his principal and that the principal was not the person, liable to pay the debt of the surety. The expressions used imply that had it been otherwise, payment would have been available to the decree-holder as an answer to a plea of limitation.

9. In Brajendra Kishore v. Hindusthan Cooperative Insurance Society Ltd. [1917] 44 Cal 978, Sanderson, C.J. and Mukherji, J., followed the above decision drawing the same distinction between the debt of the surety and the debt of the principal debtor. Reference was made to Domi Lal v. Roshan Dobey [1906] 33 Cal 1278, which was distinguished on the ground that in that case

there had been only one debt in question, namely, the mortgage debt, and in as much, as the mortgagor had made payments to the mortgagee, it was held that such payments affected not only the mortgagor but the respondent who was the purchaser of the equity of redemption and who of course claimed through the mortgagor.

10. In the case before him, there being two distinct debts, Sanderson, C.J., held that the fresh period of limitation created u/s 20 by the payment of interest by the principal debtor could be only in respect of the debt upon which the interest was paid. Jogesh Chandra Saha and Another Vs. Monindra Narain Chakravarty and Others, , was a decision regarding persons who had jointly borrowed money on a simple bond and came as joint contractors, within the terms of Section 21(2), Limitation Act. It followed that payment by one of these persons did not give a new start for limitation as against the other. We have been referred to two Madras decisions Muthu Chettiar v. Mohamad Hussain AIR 1920 Mad 418 and Thayammal v. Muthu Kumaraswami AIR 1929 Mad 881.

11. Both these were cases of mortgages originally entered into by two or more persons and falling within the terms of Section 21(2), Limitation Act, joint mortgagors being treated as co-contractors within the meaning of that sub-section. In none of these does the decision (apart from obiter dicta) involve a denial of the principle that payment by one debtor may affect limitation against others. In Ahsan Ullah v. Dakhini Dei [1905] 27 All 575, Blair and Banerji, JJ. said:

On general principles one debtor by acknowledging a debt or making a part payment otherwise than an agent of other debtors cannot keep alive the right of creditors against these debtors.

No authority was cited in support of this view. This decision was approved in the Calcutta High Court in Chandra Kumar v. Ramdin [1912] 13 IC 702, a case of acknowledgment and not of payment in which it had been held by the lower Court that the acknowledgment was effectual against the person making it, and not against his co-mortgagor, and execution had been allowed to proceed against the defendant who made the acknowledgment and not against others. The only question to be decided by the High Court was whether the debtor who had made the acknowledgment could repudiate liability, and it was held he could not. No question as to the liability of his co-debtors arose.

12. The above Allahabad decision has not, as I have shown, been followed in more recent cases of the same Court and with great respect, I propose not to follow it. Another Calcutta case of Arjun Ram Pal v. Rohima Banu [1912] 14 IC 128, was a decision by a single Judge as to effect of a payment by one of the co-heirs of the original mortgagor. With great respect I do not think the learned Judge took a correct view of the law holding that limitation was only saved as against the person making the payment, Sarada Charan v. Durgaram De [1910] 87 Cal 461. There remains one decision of the Patna High Court in Sorab Nath v. Top Ojha [1917] 43 IC 351, on which special reliance is placed by the appellant as being a decision of this Court. It is necessary therefore to state the facts of that case.

13. The mortgage in question had been created not by a single mortgagor but by two widows and at the time of the suit both widows were dead. There were five defendants who had succeeded as reversioners to the property on the death of the widows. One of the reversioners had made a payment on account of interest and the question was whether it saved limitation as against himself only or as against all the defendants. It was held that the payment or acknowledgment was binding only on the person who made it. Sardar Charan v. Durgaram De [1910] 87 Cal 461 was distinguished as being a case in which the debtors had inherited an indivisible liability on an indivisible debt whereas in the present case the five reversioners must be regarded as co-mortgagors inasmuch as they had succeeded to the interests of the original mortgagors and held separate and distinct shares in the property.

14. The Patna case was followed in Muthu Chettiar v. Mohamad Hussain AIR 1920 Mad 418 above cited. But these decisions seem to be applicable only to cases in which the original contract was entered into by more than one mortgagor. Where the mortgage was entered into by a single mortgagor but subsequently the equity of redemption has passed to his successor, but other parties have acquired an interest in the equity of redemption that fact would not make it a case of co-mortgagors or co-contractors so as to give the parties other than those who made the payment the benefit of Section 21(2), Limitation Act. In Ibrahim and Another Vs. Jagdish Prasad , Dalal and pullan, JJ. of the Allahabad High Court declined to follow the Patna decision, the case before them being of a mortgage originally created by a single executant.

15. The distinction is not expressly drawn in the judgment and the head-note is misleading. There was not, I think, any question of co-mortgagors in that case Be that as it may, the Allahabad High Court had no hesitation in re-affirming the principle that where several persons are interested in the equity of redemption payment by any one of them can keep alive the debt as against all

according to the language of the section, the debt being kept alive the result must be to keep it enforceable against anyone liable for it.

The cases of Ghasi Khan v. Kishori Ramanji AIR 1929 All 880 and Achola Sundari v. Doman Sundari AIR 1926 Cal 150 went further and applied the same principle even where the original mortgage had been created by two persons. It is not necessary to express any opinion as to the correctness of those decisions which are in conflict with Sarab Nath v. Top Ojha [1917] 43 IC 351 but it seems to emerge clearly from a general view of the authorities cited that though Section 20 may not apply to one debtor by reason of a payment made by another debtor in cases where the debts or liabilities are distinct as in Gopal Daji v. Gopal [1904] 28 Bom 248 and Brajendra Kishore v. Hindusthan Co-operative Insurance Society [1917] 44 Cal 978, and though Section 21(2) may apply where a mortgage has been entered into by two or more persons as in Muthu Chettiar v. Mohamad Hussain AIR 1920 Mad 418, Sarab Nath v. Top Ojha , [1917] 43 IC 351 and Thayammal v. Muthu Kumaraswami AIR 1929 Mad 881 or where two persons jointly execute a simple money bond, Jogesh Chandra Saha and Another Vs. Monindra Narain Chakravarty and Others, , limitation is saved where the debt is a single debt and the liability is one and indivisible not with standing that a part of the property liable for the debt may be in hands other than those of the person making the payment.

16. Such a case falls within Section 20 and is not taken out of its operation by Section 21(2) of the Act. I would, therefore, dismiss the appeal with costs to the contesting respondent.

Agarwala, J.

The question for decision is whether a payment towards interest due under a mortgage decree, made before the expiry of the period prescribed for the execution of the decree by a person who has inherited a part of the mortgaged property is binding on a person who prior to the payment has purchased another part of the mortgaged property in execution of a money decree, so as to extend the period of limitation for executing the mortgage decree and enabling the decree-holder to proceed against the portion of the property sold in execution of the money decree.

17. The contention of the decree-holder is that the payment of interest provides him with a fresh starting point for the execution of his decree by reason of the provisions of Section 20(1), Limitation Act, 1908. The material words of that section are:

Where interest on a debt is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt, or by his agent duly authorized in his behalf, a fresh period of limitation shall be computed from the time when the payment was made.

18. The first question, therefore, in the present case is: who is the person liable to pay the debt within the meaning of Section 20(1) In the case of a debt secured by a mortgage the debt is one although the property pledged as security for its repayment may consist of more than one item and although the various items may belong to more than one person. The liability for a mortgage debt is indivisible and no splitting up of the security avails to split up the liability unless the mortgagee consents to it. A payment of interest by a mortgagor judgment debtor, therefore, is a payment by a person liable to pay the debt. That being so, the next question is: Against what property is the liability enforceable And the answer to this question is that so long as the mortgage is alive the mortgagee is entitled to enforce it against all or any part of the mortgaged property: Chinnery v. Evans [1864] 11 HLC 115. To my mind the position, thus far is perfectly clear. But it is contended that if the property against which it is sought to enforce the liability has passed into the hands of another, the latter is not bound by any payment that has been made by a person whom he has not authorised to make the payment, and reliance is placed on Sub-section (2) Section 21, Limitation Act. Section 21 would be relevant if it were necessary for us to determine whether the payer was or was not the authorised agent of the objector within the meaning of Section 19 or Section 20. That in my opinion is not the question required to be determined in cases of the present kind.

19. The only enquiry we are concerned with is: Was the payer a person liable for payment of the debt and, if so, what is the effect of the payment It is incontrovertible that the payer in this case was liable to pay the debt, and that the payment provided a fresh terminus a quo for its realisation. But for certain cases which have been cited before us I should have thought it to be unarguable that the debt being alive, is enforceable against every item of the mortgaged property. The first of these cases is Arjun Ram Pal v. Rohima Banu [1912] 14 IC 128 where it was held that a payment of interest by one of the heirs of a deceased mortgagor did not extend the period of limitation against purchasers from the other heirs. That was a case decided by Coxe, J., sitting singly in which the learned Judge did not consider himself bound by an observation made by a Division Bench of the same Court in Sarada Charan v. Durgaram De [1910] 87 Cal 461 to the effect that:

there is nothing in Section 20, Lim. Act, to warrant the belief that the extended period of limitation is intended to operate only against the person making the payment.

20. The decision in Arjun Rams case [1912] 14 IC 128 was approved in Jogesh Chandra Saha and Another Vs. Monindra Narain Chakravarty and Others, which according to the report was a case of a "simple money bond." The learned Judges who decided that case referred to the Division Bench decision of their own Court in Achola Sundari v. Doman Sundari AIR 1926 Cal 150 but remarked that in that case,

It is not said in so many words that the period of limitation is extended against co-mortgagors by a payment made by one of them.

If the learned Judges in Srimati Achola Sundari Debi Vs. Srimati Doman Sundari Debi and Others, did not say this in "so many words" their decision nevertheless depended on this being their view. In fact they said that the proposition that a payment to be effective u/s 20 must be made by all the co-mortgagors together was "a novel one."

21. The appellant has also relied on the decision in Chandra Kanta v. Ramdin Poddar [1912] 13 IC 702. That was a case in which the lower appellate Court had held that an acknowledgment of a debt by one of several joint judgment-debtors saved limitation against the maker of the acknowledgment. The latter appealed to the High Court, and the only question before their Lordships was the effect of the acknowledgment as regards the maker and not its effect against the other judgment-debtors. In Muthu Chettiar v. Mohammad Hussain AIR 1920 Mad 418 the Madras High Court held that co-mortgagors are co-contractors within the meaning of Section 21(2) and this decision was applied in Thayammal v. Muthu Kumaraswami AIR 1929 Mad 881 a case relied on by the appellant. As I have already, indicated, we are not concerned with Section 21(2) in the present appeal, but with Section 20.

22. The last case on which the appellant relies is a decision of our own Court in Sarab Nath Das v. Top Ojha [1917] 43 IC 351 in which two widows had mortgaged certain lands for legal necessity. The equity of redemption eventually passed to their husbands reversioners who inherited separate and distinct shares in the property. Their Lordships held that a payment by one of these reversioners did not bind the others.

23. That case is distinguishable from the present on the ground that it was a case in which the mortgage was by two persons and it may be that considerations may arise in such a case different from those which arise in one like the present where the mortgage was executed by one person only. I do not, as at present advised, consider that that would be the case but for the purpose of the present appeal it is sufficient to observe that the mortgage in the present instance was by a sole mortgagor whose successor was liable for the payment of the debt. I would therefore dismiss this appeal.