P L D 1961 (W (PLP)

ORTCHESON, J. ‑‑The facts leading up to this further civil appeal are that on the 6th of April 1949 Sardar Khan (respon dent No. 1) and his father Abdul Latif, now deceased, executed a bond, copy Exh. P. 1, in favour of Hafiz Haji Rahmatutllah appellant in the amount of Rs.4,

940. Subsequently Mst. Jan Sultan sold a house to the appellant for consideration of Rs. 4,000 vide registered deed, copy of which is Exh. P. 2, out of the sale money the appellant appropriated a sum of Rs. 290 towards the bond in dispute, an endorsement to that effect, Exh. P. 3, being made on the back of the bond and thumb‑marked by Sardar Khan. After deducting the above sum and a further amount of Rs. 1,150 as share of Sardar Khan in certain lease money the appellant brought the present suit (No. 69/1 of 1954) for the balance of Rs. 3,400, As Abdul Latif had died some eighteen months previously his three daughters, Mst. Maqbul Jan, Mst. Shamsi Jan and Mst. Zamrud, were impleaded as his legal representatives.

2. The defendants contested the suit on the grounds that it was time‑barred, that the plaintiff had no cause of action, that the matter was res Judicata, that the plaintiff was estopped by his conduct from bringing this suit, that no bond was executed by Sardar Khan and Abdul Latif in favour of the plaintiff. and in the alternative that if it was found that any such bond was in fact executed, it was obtained by fraud

3. The following issues were framed : ‑ (1) Is the suit within time ? (2) Is the the suit barred on account of the application of the rule of res judicata. (3) Is the plaintiff estopped from instituting the present suit on account of his past ,conduct ? (4) Whether defendent No. 1, and predecessor‑in‑interest of defendants 2 to 4 had executed for consideration the suit deed dated 6‑4‑49 in favour of the plaintiff ? (5) Whether the suit deed was acquired from defendant No. 1 by practising fraud on him ? (6) Whether the date of writing of the suit deed gives a good cause of action to the plaintiff ? . (7) Relief ?

4. Issues 2, 4 and 5 were not pressed by the defendants, while issue No. 6 was held by the trial Court to have become redundant in view of his finding on issue No.

1. The Latter issue was decided against the plaintiff and issue No. 3 in favour of the defendants, the suit being consequently, dismissed with costs. An appeal filed in the Court of the learned District Judge (No. 16 of 1955) was dismissed on the 7th of November 1955), and against the order this further appeal has been filed.

5. The first question for decision is whether the suit is within time. In support of his case the plaintiff‑appellant relies on the endorsement Exh. P. 3 above referred to, which recites that a sum of Rs. 290 was paid towards the amount due on the bond out of the consideration for the sale deed dated 11‑3‑1952, and which is thumb‑marked by Sardar Khan respondent. Learned counsel for the respondent takes his stand on section 20 of the Limitation Act (hereinafter referred to as the Act) the relevant portion of which provides that where payment on account of a debt is, before the expiration of the prescribed period, paid by the person liable to pay the debt, or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment was made. According to learned counsel Mst Jan Sultan was not the authorised agent of Sardar Khan, and the payment consequently cannot be invoked to save limitation. This contention was accepted, by the Courts below but their decision is clearly incorrect, proceeding as it does on the assump tion that an authorisation to pay on behalf of a debtor must be express. It is, on the contrary, well settled that an implied authority is equally binding. In National Bank of Upper India v. Bansidhar (A I R 1929 P C 297) it had been agreed between a third person and the promisor that the former would discharge the latter's debt evidenced by a promissory note to the promissee in respect of the principle and interest, and it was clear from the promisor's evidence that he left it to the third person to do so. Their Lordships of the Privy Counsel held that in such circumstances an implied authority from the promisor to the third person to pay the interest on his behalf as it became due was established so as to save limitation under section 20 of the act. Another authority on the point is Brijmohan Lal v. Rudra Perkashmisser, (I L R 17 Cal. 944) in which it is remarked: "It is to be observed that section 20 of the Limitation Act does not require the agent to be authorised in writing, and we think that an agent may impliedly be so authorised." In the present case, not only was the sale deed thumb‑marked by Sardar Khan as an attesting witness, but the endorsement on the bond itself is also attested by him. He must, therefore, be held to be fully aware of the payment in dispute, and there could be no clearer applied authority to Mst. Jan Sultan to make the payment on his behalf.

6. It is not disputed that to be effective, it is unnecessary that the writing evidencing a payment should contain a clear acknowledgement of liability, section 20 of the Act in this respect differing from section

19. This principle may even apply to cases in which, on account of some defect, an endorsement of payment fails to be effective under section 20, the payment operating as an acknowledgement of liability under section 19.

7. For the above reasons I hold that, subject to the decision on the further question of whether the appellant is estopped by his conduct from suing on the bond, Sardar Khan is bound by the payment.

8. The next question for determination is the liability of Abdul Latif deceased. It has no doubt bean held in a number of cases from the Madras and Calcutta High Courts and the Oudh Chief Court that, subject to the provisions of the section 21, sub section (2), a payment under section 20 of the Act saves limita tion against all the persons who are liable for the debt, but with the utmost‑ respect I find myself unable to subscribe to this view, there being in my opinion no such essential difference between the wording of sections 19 and 20 as to justify the drawing of a distinction between the effect of an acknowledgement and that of a payment. Section 19(1) runs :‑- "Where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time, when the acknow ledgement was so signed. The relevant portion of section 20 (1) of the Act is as follows:-- Where payment on account of a debt or of interest on a legacy is made before the expiration of. the prescribed period by the person liable to pay the debt or legacy, or by his duly, authorised agent a fresh period of limitation shall be computed from the time when the payment was made.

9. Section 20 is, however to be read in the light of sub section (2) of section 21, which provides :‑ "Nothing in the said sections (9 and 20) renders one of several joint contractors, partners; executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made, or by the agent of, any other or others of them."

10. A comparison of the above‑cited provisions of sections 19 and 20 shows that they are exactly, parallel. Each first lays down that the act to which they refer must be done within the period of limitation. The act done is then described, namely, in section 19 the making of an acknowledgment of liability to respect of the property or right involved and in section 20 (t) the making of a payment on account of a debt or of interest on a legacy. Next follows a description of the person by whom the act is to be done. Under section 19 (I) that person is the party against whom the property or right is claimed or some person through whom he derives title or liability, and Explanation Ii provides that for the purposes of section 19 "signed" mean signed either personally or by an agent duly authorised in this behalf. Under section 20 (1) the person making the payment must be the person liable to pay the debt or legacy or his duly authorised agent. Finally, when the above acts have been done by the persons concerned, both sections provide that a fresh period of limitation shall be computed from the date when the acknowledgment was so signed.

11. The above comparison of the two sections clearly shows such a close correspondence that in my opinion very strong and cogent reasons are necessary before the inference can be drawn that whereas section 19 limits the acknowledgment of liability to the person making it, a payment under section 20 binds not only the maker thereof; but also all other persons liable to pay the debt or legacy. With the greatest respect I am unable 'to agree with the grounds advanced in support of such a view.

12. On the question of how the view under discussion came to be taken the following remarks of Horwill, J. in C. K. Kunjandi v. Kuduvayoor Nagarathil Melharath Kadir Moideen Rowthen's Son Chinnvava Rowther and others (A I R 1941 Mad. 110) are worthy of note :‑-- "There can be no doubt that it is well established in this High Court that any acknowledgment made under section 19 by one person does, not save limitation against any other persons liable under the note, whereas a payment made under section 20 saves limitation as against all those liable under the note. I am unable to see any great difference in the wording of sections 19 and 20 which would account for this difference in the law applying to acknowledgments and payments. The earlier Indian decisions on the subject seem to have been based largely on the English law; and the decisions to which I have been referred assume difference between sections 19 and 20 and follow the earlier cases." It is unnecessary to emphasize the danger to which the learned Judge has called attention, of importing into the inter pretation of a Pakistan Statute distinctions based on English law, but reference may be made to the observations of their Lordships of the Privy Council in Rama Shah v. Lal Chand (AIR 1940 P C 63). Their Lordships cannot agree that the section (section 20 of the Act) is to be read as governed by any such principle as is suggested, familiar though it may be in the law of England. They can discover no sufficient reason for the assumption that the section is an expression of any single principle. In English law effect was first given to acknowledgments and payments by reason of general principles of exception applied by the Courts to the Statute of Limitation (1623) which did not contain express exceptions in these respects, and though the exceptions were in the end made statutory they retained much of their original character. In the Limitation Act, section 19, which deals with acknowledgments, is not to be read as based upon the theory of implied promise ; and it is difficult to see why section 20, which deals with payments, should be regarded as based upon a theory of acknowledgment. The Indian Legislature may well have thought that a payment if made on account of the debt and evidenced by writing gave the creditor some excuse for further delay in suing, or was sufficient new proof of the original debt to male it safe to entertain an action upon it at a later date than would otherwise have been desirable."

13. I am also in respectful agreement with the following remark in Amir Mirza Beg v. Lachhmi Narain (A I R 1932 Oudh 1) : "In England the acknowledgment or part payments in order to be effective must be such as to amount to a fresh promise to pay. Under the Indian Law no promise to pay either express or implied is required. We are, therefore, of opinion that the English authorities cannot afford any guidance in determining the question, which must be decided on the proper construction of the provisions of the Indian Limitation Act." It is true that in the above case the learned Judges adopted the view that part payment by any person liable to pay the debt gives a fresh period of limitation not only against that person but also against his co‑debtors, but they have given no reasons. Learned counsel for the appellants conceded the point, and the learned Judges were under the impression that all authorities in India were unanimous, which was not in fact the case even at that time, a contrary opinion having been expressed, in for example, Thaymmal and others v. A.T. Muthukumaraswami Chattiar (A I R 1929 Mad. 881), Rajtilak Narayan v. Muftzuddi Topadar (A I R 1927 Cal. 193), Ahsan‑ullah v. Dakkhini Din (I L R 27 All. 575), Kothandaraman Chesty v. Shunmlugam Chetty (A I R 1917 Mad. 895) and Brojendro Kissore Roy Chowdhury v. Hindusthan Co operative Insurance Society, Ltd., (A I R 1918 Cal. 707).

14. In my opinion, one of the strongest arguments against the view that a payment by one of several debtors binds all the others is that it leads to placing a somewhat strained and un natural construction on subsection (2) of section 21 of the Act. Ft is well settled that so far as section 19 is concerned, the said subsection is to be considered as an explanation, and it may be pointed out that section 20 of the Act of 1871, which corresponds to section 19 of the present Act, contained the following as Explanation 2 :‑-- "Nothing in this section renders one of several partners or executors chargeable by reason only of a written promise or acknowledgment signed by another of them." On the other hand, if section 20 of the present Act is read as binding co‑debtors, subsection (2) of section 21 will have to be regarded as in one sense an explanation, and in another sense an exception to that section. In Azizur Rehman Osmani v. Upendra Nath Samanta (A I R 1938 Cal. 129) it is remarked :‑- "In the first place it (subsection (2) of section 21) explains that a contractor, partner, etc., would not be an implied agent of his co‑contractors or co‑partners for purposes of sections 19 and 20 and if it is sought to bind the latter by any act of acknowledgment or payment made by the former, authoris ation must be proved. In the second place it engrafts an exception upon section 20 to this extent that payment by one of several joint contractors, partners, executors or mortgagees would not keep alive the debt or liability as against the other contractors; partners, executors and mortgagees unless; the pay ment is proved otherwise to be a payment on their behalf also." With the greatest respect, on a plain reading of sections 20 and 21 of the Act I can see nothing to justify the conclusion that the Legislature intended subsection (2) of section 21 to fill the above dual role, and I am in respectful agreement with the observations of the learned Judges in Ram Kumar Pandey v. Hire Lal (A I R 1939 All. 230):‑-- "We are satisfied that the Legislature never intended to enact that an independent payment by one judgment debtor should have the effect of interrupting the running of the period of limitation as against the other judgment‑debtors, and we are of opinion that subsection (2) of section 21 does not lend any support to that view. In our opinion. subsection (2) of section 21 is merely explanatory; it does not lay down exceptions to any general principle embodied in section 20.

15. It has already been pointed out that the doctrine that a payment by one of the several persons jointly liable under a debt saves limitation against the others appears to be based on English law. The distinction between the relevant English statutes and the then Indian Limitation Act is thus enunciated in Azizur Rehman Osmani's case mentioned above :‑ "In none of the three English Statutes, namely, R. P. L. A. 1837, R. P. L. A. 1874, and Civil Procedure Act, 1833, the person by whom the payment is to be made is expressly defined. But Lord Chancellor Lord Vestbury in (1864) II H. L. C. 115 at p. 134 thought that the words by the person by whom the same shall be payable, in section 8 of R. P. L. Act, 1874. applied to acknowledgment as well as to payment Under each of the three English Statutes the payment may be made by any person liable or interested or entitled to pay or who is in such a relation to the debtor that a payment by him operates as an admission by the debtor. Section 20, Limitation Act, expressly defines the person by whom the payment is to be made. In the case of part payment of principal, payment is to be made by the debtor or his agent, while in the case of pay ment of interest the payment may be made by the person liable to pay. The expression `person liable to pay' does not mean all the persons liable to pay. In section 19, Limitation Act, the acknowledgment is to be made by the party against whom the property or right is claimed. In section 20 however we do not find any such restriction. The reason for this distinction apparently is that acknowledgment is a mere admission of right, whereas payment is more than a mere admission of right. It operates for the benefit of all the persons who are liable." The words underlined in the above passage bring out clearly the essential difference between English law and the law of Pakistan on the question involved, and with the greatest respect, I am unable to appreciate the distinction draw by the learned Judges in the above authority between sections 19 and 20 in respect of the person by whom the act saving Limitation is to be done. On the contrary, as I have already stated, the two provisions appear to me to be exactly parallel. Under section 19 the acknowledgment is to be made by the party against whom the property or right is claimed or by some person through whom he derives title or liability, and under section 20 there is a corresponding restriction, namely, that the payment towards interest or principal is to be g made by the person liable to pay the debtor legacy or by his agent duty authorised in this behalf. The difference in wording is due entirely to the difference in subject‑matter, section 19 relating to the very broad and general terms `property' and `right', while section 20 is concerned only with debts and legacies.

16. Another argument .advanced by the learned Judges in Azizur Rehman Osmanis' case is as follows :‑ "Now the language of section 20, Limitation Act, is perfectly clear, and there is a distinction in this respect between sections 19 and

20. Section 19 speaks of acknowledgment being made and signed by the party against whom the right or pro perty is claimed, whereas section 20 lays down that when interest is paid as such by the person liable to pay, a fresh period of limitation shall be computed from the time when the payment is made and does not limit the extended period to the person who actually made the payment." The above argument could, however, equally well be put in the converse form, namely, "Now the language of section 19, Limitation Act is perfectly clear, and there is a distinction in this respect between sections 20 and 19. 'Section 20 speaks of payment of interest being made as such by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, whereas section 19 lays down that when an acknowledgment is made and signed by the party against whom the right or property is claimed, a fresh period of limitation shall be computed from the time when the payment is made and does not limit the extended period to the person who actually‑made the acknowledgment." In other words, the argument employed by the learned Judges could equally well be advanced in favour of the proposition that an acknowledgment made under section 19 by one person extends limitation to others but as already remarked, it is not disputed that an acknowledgment saves liability only against the person making it.

17. In the case above noted, reference is also made to Domi Lal Sahu v. Roshan Dobay (I L R 33 Cal. 1278), in which Maclean, C. J: held:‑ "It is contended that the section (section 20) only creates a new period of limitation as against the person actually paying the money, and that as the respondent had purchased before the payment was made, the new period of limitation cannot take effect as against him. There is nothing in the language of the section to support that view, and there is nothing to warrant us in introducing words into the section which would authorize that view. The words of the section are general and plain. When the Legislature intends that a fresh period of limitation is to operate as against certain persons only, it says so in distinct terms. See section 18 of the Act. There is nothing in this section to indicate that the extension is only to operate against the person making the payment. The case appears to be covered by the case of Krishna Chandra Saha v. Bhairab Chandra Saha I L R 32 Cal. 1077 which apparently was not cited to the learned Judge, against whose decision this appeal is brought." Section 18 of the Act, referred to by the learned Chief Justice, provides that where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, a fresh period of limitation shall be computed from the tithe when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production, and that the time is to be so computed:‑ (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him otherwise than in good faith and for a valuable consideration. With the greatest respect it appears to me that if his argu ment is intended to lay down the general principle that a payment by one debtor or by his agent duly authorised in this behalf binds all other joint debtors, it is open to the objection advanced in the preceding paragraph of this judgment. The point involved in the above case, however, was whether a payment made by certain mortgagors operated to create a fresh period of limitation against the purchaser of the equity of redemption of the mortgaged property, and in such a case the mortgagor has been held to be a person from whom the purchaser of the equity of redemption derived his title. Krishna Chandra Saha v. Bhairab Chandra Saha, to which reference is made in the passage cited, was clearly decided on that basis, the learned Chief Justice, who pronounced the judgment in Krishna Chandra Saha's case, remarking:‑- "It is not disputed that the acknowledgment made by the defendant No. 1 in respect of the properties, which had not been sold, was perfectly good as against him. But it was also an acknowledgment given by a person through whom the defendant No. 2 derived his title. It was given by the mortgagor and it was through that mortgagor that the defendant No. 2 derived his title, " It is true that a reference is then made in Domi Lal Saha's case to section 20, but from the language used it is clear that the learned Chief Justice was not expressing any definite opinion, The relevant passage in the judgment run:‑ "Again it may be said that the language of section 20 meets the case. That section prescribes that when part of the principal of a debt is, `before the expiration of the prescribed period paid by the debtor or by his agent authorized in that behalf, a new period of limitation according to the nature of the original liability shall be computed from the time when the payment was made. Here part of the principal was undoubtedly paid by the debtor, defendant No. 1, that is the mortgagor before the expiration of the prescribed period, and would perhaps be sufficient to bring the case within that section. The section would consequently seem to apply. As the case was held to fall within the orbit of section 19, the reference to the effect of section 20 was in the nature of an obiter dictum and moreover, only a tentative one.

18. Coming to the authorities in support of the view that the payment by one of the several joint debtors does not bind the others a brief reference may be made to the following. (1) Arjun Ram Pal v. Rohima Banu (14 I C 128). In this Single Bench decision it was held that the payment of interest by one heir on a debt due by a deceased person does not save limitation against the other heirs. (2) Jogesh Chandra Saha v. Monindra Narain Chakravarty A I R 1932 Cal. 620, it was held by a Division Bench that the payment of interest by a debtor does not save limitation against the co‑debtors whose agent the payer was not. (3) In Ahsan‑ul‑Lah v. Dakkhini Din I L R 27 All. 575 already mentioned above, it was held by a Division Bench that a payment made by one of several persons jointly liable under a decree otherwise than as an agent of his co‑judgment debtors cannot operate to save limitation as against any of the judgment debtor other than the person making the payment.

19. To sum up on this point i am, with great respect firmly of the view that no distinction can logically be drawn between sections 19 and 20 of the Act with respect to the effect of an acknowledgment and of a payment, and that subsection (2) C of section 21 operates as an explanation to both, making it clear that under section 20, as under section 19, the liability is confined to the persons described in the sections, and that) joint contractors cannot be bound by an acknowledgment or payment made by another of them.

20. In view of the above finding it is clear that as Mst. Jan Sultan was not the duly authorised agent, either expressly or by implication, of Abdul Latif, the latter cannot be bound by the payment made by her, the suit being consequently barred by time of against him.

21. Even as against Sardar Khan however, it is argued that the appellant is estopped by his conduct from suing on the bond in dispute. The precise contention is that the compromise (copy of the deed is Exh. D. A. (entered into on the 28th of March 1950 in Suit No. 32 of 1950 filed on the 8th of February of that year in the Court of the Revenue Officer, Kohat, operates as a novation of contract, a sum due under the bond now in dispute having been included in the. total of Rs. 5,000 found due to the plaintiff (the present appellant) on account of various debts. The finding of the Courts below on this point is incorrect. The suit in question was for ejectment of the present respon dents from certain land on the basis of an alleged breach or breaches by the defendants of an agreement between the parties. Paragraph 2 of the compromise deed recites that a sum of Rs. 5,000 is due from the defendants on account of debts owed to the plaintiff, and a reference to the compromise is further made in the receipt Exh. D. 1, dated the 12th of March 1953. In this document the present appellant admitted the compromise and stated that out of the yearly instalment of Rs. 1,000 which the present respondents had agreed to pay, on amount of Rs. 290 had been received. The mere fact, however, that an amount then due under the bond had been included in the said com promise would not by itself amount to novation of contract. It is well settled that a novation is not consistent with the original debtor remaining liable in any form. In the present case, the compromise deed nowhere recites that the liability of the respondents under the bond now in dispute had been exting uished, the relevant terms of the compromise running as follows:‑ "(3) That the defendants have made the plaintiff agree not to eject the defendants for the present, and the defendants also authorise the plaintiff to sell their future half share (in the suit of the garden). The plaintiff shall keep selling their share besides his own until the satisfaction of the plaintiff's debt of Rs. 5,000, and after that the garden will be sold on the mutual agreement of the parties. (4) That in case the half share of the defendants is sold for more than Rs. 1,000, Rs 1000 will be received per annum by the plaintiff towards his debt while the balance will be paid by the plaintiff to the defendants. In case the price of the defendants' share is less than Rs. 1,000 the defendants will make good the yearly instalment of Rs. 1,000 for payment to the plaintiff until the satisfaction of Rs. 5000. (5) That in default of payment of any yearly instalment the defendants shall be liable to pay the whole amount of the debt in a lump sum and they will be ejected after objection. The plaintiff shall exercise the right of ejecting the defendants."

22. From the above it will be seen that the compromise only related to the mode of discharging the debts due from the then defendants to the plaintiff and went no further.

23. There is also considerable force in the argument of learned counsel for the appellant that if the compromise had extinguished the bond, the bond itself would either have ‑been cancelled or made over to the debtors, but not only did it remain in the possession of the present appellant, but long after the compromise Sardar Khan acknowledged a payment towards it. In these circumstances there was no novation of contract, and the bond still holds good.

24. For the above reasons, I would accept the appeal, set aside the judgment and decree of the learned Additional District Judge, and grant the appellant a decree as prayed with costs against Sardar Khan alone. HABIBULLAH, J.

I agree. K.B.A. Appeal accepted.