Sinha, J.This is a defendants second appeal from the decision of the learned Subordinate Judge of Muzaffarpur reversing that of the Munsif of Bettiah in a suit for money based on a chitta dated 25th December 1936 evidencing an advance of Rs. 520 by the plaintiff to the defendants. The suit was instituted on 21st November 1941 when on the face of it the claim would be barred by limitation, but it was alleged in para. 7 of the plaint that defendant 1 on behalf of his joint family and as karta thereof paid the sum of Rs. 10 on account of principal and interest, but in the account appended to the plaint the plaintiff has proceeded on the footing that Rs. 10 was appropriated towards the principal sum due.

2. The defendant appellant contested the suit chiefly on the ground of limitation denying the alleged payment of Rs. 10 either towards the interest or towards principal. The trial Court dismissed the suit holding that the alleged payment had not been proved. On appeal by the plaintiff the lower appellate Court reversed the decision of the trial Court and came to the conclusion that the endorsement appearing on the chitta to the effect that Rs. 10 had been paid had really been made by the defendant and that the thumb impression affixed to the endorsement was also his. On that finding the lower appellate Court came to the conclusion that u/s 20, Limitation Act, the suit was saved from the bar of limitation. It also observed that even if it be held that the provisions of Section 20, Limitation Act, were not attracted to this endorsement, the same would amount to an acknowledgment of an existing liability and therefore Section 19 of thewould apply. In that view of the matter the suit was decreed. Hence this second appeal by the defendant.

3. Mr. B.N. Ray appearing on behalf of the appellant has contended that this case is governed by the decision of their Lordships of the Judicial Committee in AIR 1940 63 (Privy Council) . In that case their Lordships laid it down that where a debtor pays a sum of money in part payment of ah interest-bearing debt without indicating whether the payment is towards interest or principal, in order to obtain a fresh period of limitation u/s 20, Limitation Act, it is incumbent on the creditor to appropriate the sum paid towards the principal before the expiration of the prescribed period of limitation. In. the present case the findings of fact arrived at by the lower appellate Court did not amount to holding that the appropriation made by the plaintiff was so made before the expiry of the period of limitation for a suit on the chitta itself. The finding of the lower appellate Court as regards the appropriation is based on the statement in para. 7 of the plaint read along with the account appended to it. That would amount to saying that by the method of appropriation as evidenced by the plaint, the plaintiff made the appropriation of Rs. 10 towards the principal sum.

4. There is no finding arrived at by the lower appellate Court to bring the case within the purview of the decision of their Lordships of the Judicial Committee referred to above. Mr. B.N. Rai also contended that there is no evidence on the record that such an appropriation was made at any time within the period of limitation for a suit on the original chitta itself. Mr. Kameshwar Dayal appearing on behalf of the respondent was not in a position to controvert that statement, but he contended that as the finding of the lower appellate Court is that the appropriation had been made by the plaintiff towards the principal sum, the presumption is that it must have been done at the time the payment was made. But the difficulty in the way of the respondent is that he has not produced his account books or any other evidence in support of the contention raised on his behalf. It must, therefore, be held that there is no evidence to support the contention that the appropriation was made within the period of limitation. That being so, the claim was made beyond three years from the accrual of the cause of action and therefore out of time. But Mr. Kameshwar Dayal further contended that the provisions of Act 16 [XVI] of 1942 would have the effect of saving limitation even in respect of a cause of action which had arisen, and even in respect of a suit which had been filed, before the coming into effect of the said legislation.

5. This Act was enforced on 30th March 1942 long after the institution of the suit. As held by a Division Bench of this Court in the unreported case of Baleshwar Prasad v. Latafat Karim since reported in AIR 1945 Pat. 368 decided by Manohar Lall and Beevor JJ. on 26th October 1944) this Act cannot have retrospective operation in the sense that it can apply to a suit which had already been instituted. We are bound by that decision which is specifically on the very same question raised by Mr. Dayal in this case.

6. In that view of the matter, it must be held that the suit is barred by limitation and that the decision of the learned Munsif was correct and that of the learned Subordinate Judge erroneous.

7. The appeal is accordingly allowed, but in the circumstances each party will bear its own costs throughout.

Fazl Ali, C.J.

8. I agree.