V. K. MEHROTRA, J.

( 1 ) THIS is a defendants Second Appeal who is aggrieved by a decree for recovery of a sum of Rs. 8,400/- with pendente lite and future interest at the rate of 6% per annum on Rs. 4,000/borrowed by him from the plaintiff. The lower appellate Court confirmed the decree passed by the trial Court.

( 2 ) THE finding which has been arrived at by the courts below concurrently is that after borrowing a sum of Rs. 4,000/- on Feb. 5, 1967 from the plaintiff, the defendant acknowledged his liability for re-payment of the amount by paying to the plaintiff a sum of Rs. 300/- on Jan. 1, 1970. There was an endorsement about this payment made at the back of the promissory note and the receipt through which the defendant acknowledged his liability. The defendant affixed his thumb mark below it. Both the courts disbelieved the plea of the defendant that he had not borrowed any money or that the promissory note and the receipt had been fabricated by the plaintiff.

( 3 ) THE courts below did not accept the defendants plea that the suit was barred by limitation. According to them, the suit was well within limitation as acknowledgment of his liability had been made by the defendant by the payment and endorsement dated Jan 1, 1970.

( 4 ) APPEARING for the defendant-appellant Sri S. A. Khan, his learned counsel, has urged that even on the finding recorded by the courts below, the suit could not be said to be within limitation. His submission is that the endorsement, which was treated to be an acknowledgment extending the period of limitation in the filing of the suit, was not an acknowledgment in the eye of law. The precise submission is that even according to the court below the defendant had made his signatures also on the promissory note and the receipt. The endorsement at the back of the promissory note, acknowledging the liability for the amount of loan, did not contain the defendants signature, It only had his thumb mark affixed below it. Since the defendant could make his Signatures, affixation of his thumb mark, below the endorsement could not be treated in law to be signing by him of the endorsement acknowledging his liability having regard to the meaning of the word sign contained in Section 3 (56) of the general Clauses Act.

( 5 ) IN Santlal v. Kamla Prasad. (AIR 1951 SC 477), it was observed by the Supreme Court fin paragraphs 9 and 10 of the judgment) as follows :

"9. It would be clear, we think, from the language of Section 20 Limitation Act, that to attract its operation two conditions are essentials first the payment must be made within the prescribed period of limitation and secondly it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the subordinate Judge that it is the payment which really extends the period of limitation under Section 20. Limitation Act, but the payment has got to be proved in a particular way and for reasons of policy the legislature insists, on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. 10. But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment whether made before or after the period of limitation must be in existence prior to the institution of the suit. . . . . . . To claim exemption under Section 20, Limitation Act, the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element and unless both these elements are proved to exist at the date of the filing of the plaint, the suit would be held to be

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