The certification of payments by the decree-holder under Order xxi., r. 2(1) is not considered an application within the meaning of art. 181 of the Indian Limitation Act, and therefore, the application for execution of the decree was not time-barred.

Judgement

Appeal (No. 21 of 1928) from a decree of the Chief Court of Oudh (October 4, 1926) affirming an order of the Subordinate Judge of Sitapur.

On February 14, 1925, the respondent applied to the Court of the Subordinate Judge for leave to execute a decree of that Court dated December 4, 1916. The question upon the present appeal was whether the application was barred by limitation.

The decree was in the terms of a compromise made in a suit brought by the respondent against the appellant upon two mortgages. The material terms of the decree appear from the present judgment. Shortly stated it provided for payments by instalments, and that if at any time there was a shortage of Rs. 60,000 in payment of the instalments, then the decree could be executed for the whole amount remaining due. On March 14, 1917, the respondents certified to the Court under Order xxi., r. 2 (1.), a payment of Rs. 40,000. On December 8, 1924, they filed a document described therein as an application under the above rule ; it certified payments amounting to over 8 lachs at various dates ; these payments included payments at dates between November 14, 1916, and October 26, 1923. If these payments, or such of them as were not made within three years of December 8, 1924, were ignored, the respondents could have executed the decree according to its terms at a date more than three years before the application, and accordingly execution was barred under the Indian Limitation Act, 1908, Sch. I., art. 181 or art. 182 (1.). If, on the other hand, the payments so certified were to be taken into account the decree could not have been executed before April, 1922, and the application was not so barred.

The Subordinate Judge held that the certification was not barred as an " application " within art. 181 or otherwise, that the recorded payments had been made, and that they prevented the application to execute being barred. He further held that certain letters were acknowledgments, which prevented the application to execute from being barred. Accordingly he made an order for execution.

Upon appeal to the Chief Court the order was affirmed. The learned judges (Stuart C.J. and Muhammad Raza J.) agreed with the view of the Subordinate Judge upon the first point, and therefore did not consider the alleged acknowments. The judgment is reported at I. L.

R. 1 Luck. 482.

1928. Oct. 23, 25. W. A. Greene K.C., Jopling and Rustomji for the appellant. Order xxi., r. 2 (3.), precluded the Court from recognizing payments which were not duly certified under r. 2 (1.). Consequently, having regard to the terms of the decree the application to execute it was barred under arts. 181 and 182 (1.) of the Limitation Act, unless the certification on December 8, 1924, was valid. The certification of the material payments was invalid for two reasons. First, because certification under Order xxi., r. 2 (1.), is an " application " within art. 181, and therefore is barred if made more than three years after the payment. Secondly, because it was made when execution of the decree was already barred but for payments then sought to be certified. There is no ground for holding that a decree-holder certifying to the Court is not thereby making an application. In the present case the document was in the form of an application, and was so described. The rule of the Oudh Court that a " formal application " is not necessary does not affect the matter. Several cases in India have decided that a decree-holder in certifying has made an " application " to take a step in aid of execution within art. 182 (5.), e.g., Narain Das v. Balgobind (( 1911) I. L. R. 33 A. 528.) ; Maung Law San v. Maung Po Thein. (( 1924) I. L. R. 2 R. 393.) On the second ground when the certification took place the decree was dead for purposes of execution ; there could not be a certification so as to resuscitate it. A right once barred by limitation cannot be revived. There have been decisions in India both ways on the questions rais