JUDGMENT

Ziaul Hasan, J - This is an application for revision of an order of the learned Judge, Small Cause Court, Partabgarh, passed in the course of execution proceedings, dismissing the decree-holder applicant's application for execution as time-barred. The decree in question was passed on 7th May 1930 for a sum of Rs. 218. The first application for execution was put in on 4th May 1932 and on payment by the judgment-debtor of a sum of Rs. 40 it was consigned to records on 8th August 1932. This payment was certified to Court by the decree-holder. On 5th July 1933 another payment of Rs. 50 was made and that too was certified by the decree-holder. On 24th February 1936, the judgment-debtor applied for amendment of the decree under the provisions of the Agriculturists' Relief Act but this application was dismissed. The second application for execution which is in question in the present case was made on 1st September 1936. It was urged on behalf of the decree-holder that as in his application for amendment of the' decree dated 24th February 1936, the judgment debtor had acknowledged payment of Rs. 50, this was a sufficient acknowledgment within the proviso to Section 20, Limitation Act, and that therefore the payment of Rs. 50 made on 5th July 1933 saved limitation. This argument was not accepted by the learned Judge of the Court below who held that under Section 20, Limitation Act, not only payment of principal or interest should be within limitation but also the acknowledgment of that payment appearing in the handwriting of the person making the payment.

2. I am of opinion that the view taken by the learned Judge of the Court below is not correct. The words "before the expiration of the prescribed period" which occur in Clauses 1 and 2 of Section 20 do not appear in the proviso to the Section and if the intention of the Legislature had been that the acknowledgment should also be within the period of limitation they would have clearly said so in the proviso. I find nothing in the proviso or in any other portion of Section 20 which could support the argument of, the learned Counsel for the opposite parties that the acknowledgment referred to in the pro. viso should also have been made before the expiration of the period of limitation. I am supported in this view by cases of four different High Courts. In Lal Singh v. Gulab Rai (1988) 20 AIR All368 it was said:

But it is not necessary that the acknowledgment of payment should be made in writing by the debtor Within the period of limitation. It is enough if the payment is made within the period pf limitation and it does not matter that the acknowledgment in writing is made by the debtor after the expiry of the period of limitation.

3. A similar view was taken by the Madras High Court in Venkatasubhu v. Appusuadram (1894) 17 Mad 92, and by the Court of the Judicial Commissioner of Nagpur in Ram Prasad v. Mohan Lal AIR 1923 Nag 117 The Calcutta High Court also in Muhammad Moizuddin Mia v. Nalini Bala Devi AIR 1937 Cal 284 held that it is true that the payment has to be made within the prescribed period but the Act does not provide that the acknowledgment is to be made within that period and that it is the payment and not the acknowledgment which extends the period of limitation. The learned Counsel for the opposite parties relies on the Calcutta case in Debji Ghelabhai & Bros. v. R.D. Mehta & Co. (1935) 22 AIR Cal 255 but that case is clearly distinguishable inasmuch as the alleged ac knowledgment of payment in that case was made in the written statement filed in the very case in which the question of limitation arose. As the question was whether the plaint was filed within limitation, any subsequent acknowledgment of payment by the defendant could not of course save limitation for the suit. R.C. Mitter J. of the Calcutta High Court very pertinently remarked:

When the plaintiff institutes the suit beyond the period of limitation prescribed in the schedule to the Limitation Act, he