1. This miscellaneous appeal arises out of the execution of an installment decree, which was to the effect that a sum of Rs. 131.4.0 was payable by the judgment-debtor to the decree-holder on each of the following dates: 11th October 1913, 11th April 1914, 11th October 1914, and 11th April 1915.

2. The decree-holder alleges that the first two installments were duly paid, and be applied on the 27th September 1917 for execution of the balance of the decree on the ground that the third installment, which fell due on the 11th of October 1914, not having been paid, the whole balance of the decree, according to the terms of the decree itself, became due on that date. The judgment-debtor denied payment of the installment which was doe on the 11th April 1914, and pleaded that the execution was barred.

3. The lower Appellate Court found as a fact that the second installment was paid on the 11th of April 1914 and he held that as the third installment became due on the 12th October 1914 and the default complained of took place on that date, the present application having been made on the 27th September 1917, that is to say, within three years of the 11th October 1914, the decree-holder was competent to proceed with the execution.

4. On behalf of the judgment-debtor-appellant before us, it is contended that the Court was precluded from going into the plea of payment set up by the decree-holder in respect of the second installment. The learned Counsel who appears for the appellant concedes that it is open to the decree holder to certify payment within the meaning of Order XXI, rule 2 of the Code of Civil Procedure, in his application for execution; but he contends that that certificate must be made within three years of the alleged payment or adjustment, and that, as in the present case, the certificate was made more than three years from the date of the alleged payment, viz., the 11th of April 1914, the Court is precluded by sub-clause (3) of rule 2 from taking evidence upon the point.

5. Now it is quite clear that under Order XI, rule 2, if a judgment debtor pleads payment or adjustment he most issue notice upon the decree holder before he can certify payment within the meaning of the rule, and that if he fails to certify he cannot afterwards ask the Court to go into evidence in respect of that payment Under Article 174 of the Limitation Act the period within which notice must be served upon the decree holder by the judgment debtor is 90 days of the date of adjustment or payment, and if the judgment-debtor exceeds this period then he cannot be permitted to adduce evidence in support of the plea of payment. But there is no corresponding disability imposed by the Limitation Act upon the decree-bolder; the rule does not prescribe that any notice shall be served upon the judgment-debtor by the decree-holder. He may certify the payment at any time. But it is contended by the learned Counsel that this certificate must be within three years of the alleged date of payment or adjustment.

6. The reply to this is that there is no provision in law to this effect, and, there being no prescribed period limited, it seems that it is open to the decree holder to make the certificate at any time after the alleged payment.

7. The learned Counsel replies to this that if this is the law, then it is inconsistent with the provisions of sub clause (7) of Article 182 of the Limitation Act; but we are unable to see that this is the case. Article 182, as applied to the present case, only means that the decree-holder shall make his application for execution within three years from the date upon which the installment became due, viz., third installment. He is within three years of that date, and therefore he has fulfilled the conditions of sub-clause (7). There is no other provision of law which, so far as we can see, prevents him from proceeding with the execution. If the alleged payment was in fact made on the 11th of April 1914, it is immaterial that the attempt to certify the same is more than three years from that date.

8. Of course it is a question of fact whether the payment was made or not on that date. The mere allegation of the decree holder is not conclusive. It is open to the judgment-debtor to deny that the payment was made on that date, and if he can show that the allegation of payment on that date is false, then obviously no certificate can be made in respect of that payment, and sub-clause (3) of rule 2 is a bar to the competency of the execution, But in every such case it must be deter mined upon the evidence whether or not the payment set up by the decree-holder was in fact made. In this case there is a finding of fact, which is conclusive and binding upon as, to the effect that the payment set up by the decree-holder was in fact made as alleged on the 11th April.

9. The case of Tukaram v. Babaji 21 B. 122 : 11 Ind. Dec. (N.S.) 84 is clear authority in support of the view which we have taken.

10. The learned Counsel has relied upon the case of Chhattar Singh v. Amir Singh 32 Ind. Cas. 590 : 38 A. 204 : 14 A.L.J. 132, but that case does not bear upon the precise question before us, and so far as we can see, no direct authority has been shown to us which is opposed to the view which we are now taking.

11. In these circumstances the appeal will be dismissed with costs.