Authored By : Ernest Edward Fletcher, Syed Shamsul Huda

Ernest Edward Fletcher, J.

1. This is an appeal by the decree holder against thedecision of the learned District Judge of Bard wan, dated the 15th January1917, affirming the decision of the Munsif of Katwa. On the 6th May 1910, adecree for money was passed by consent against the present applicant andanother person. The amount decreed was the total amount claimed; but it wasprovided that, if the money was aid by instalments, the decree-holder wouldaccept payment by the instalments mentioned. It was also provided that, in theevent of default being mile in the payment of any of the instalments, thedecree holder would be entitled to realize the whole amount. It is not foundthat any instalment had been paid. Therefore, the original part of the decreeby which the suit was decreed for the amount claimed remained in force. Thedecree holder only agreed to accept payment by instalments if they were made asprovided for by the decree; and, moreover, the decree expressly provided that,in default of one instalment, the decree holder would be entitled to recoverthe whole amount due. Now, the decree-holder, the present appellant, applied toexecute the decree against the defendant No, 1. He apparently arrived at somesort of private arrangement with the defendant No. 2, The present applicationfor execution was made in the year 1916. How is the decree-holder, theappellant, going to show that the present application was made in time P He,first of all, relies on two uncertified payments which he states were made tohim by the defendant No. 2. But Order XXI, Rule 2(3), Civil Procedure Code,expressly provides that an executing Court shall not recognize any payment thathas not been certified. Then, the appellant, the decree-holder, states that hecan certify the payments made at any time. That is quite true, subject, ofcourse, to the ordinary rule of limitation that the certification must takeplace within such time as is required to save the case from being barred bylimitation. He cannot postpone the certification for a long period of years andthen say that he will save the decree from being barred by limitation bycertifying the payment then. The point that is raised in this case really turnson whether the decree was saved from being barred by reason of these allegeduncertified payments. There is nothing to show that it was. That being so, thewhole decretal amount having become due on the failure to pay the firstinstalment, the present application was barred by limitation. I agree with theresult arrived at by the learned District Judge of the Court of Appeal below.The present appeal, therefore, fails and must be dismissed with costs, one goldmohur.

Syed Shamsul Huda, J.

2. I agree.

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Bahuballav Roy vs.Jogesh chandra Banerjee and Ors.(06.06.1918 - CALHC)