GOPI NATH SINGH Vs. HARDEO SINGH

JUDGEMENT

(1.) This first appeal arises out of an application made by one Chaudhari Gopinath, decree-holder. The application is under Section 90 of the Transfer of Property Act asking for a decree under that section and for sale of certain property of Dalip Singh and others, judgment-debtors.

(2.) Among other objections raised by the judgment-debtors was an objection to the effect that the claim to this decree was barred inasmuch as the suit was filed when more than six years had expired after the execution of the bond. The bond was dated 21 of March 1884, the suit brought upon it was instituted on the 28th of August 1902. Several payments had been made from time to time, but the judgment-debtors objected that these payments were not payments made towards interest "as such." The Subordinate Judge who tried the suit held that these payments should be considered payments appropriated by the judgment- creditor towards interest due under the bond. The lower Court in considering the application for execution was of opinion that (1) mere appropriation by the creditor of any amount paid towards interest, or (2) any direction of a Court that sums paid be appropriated under the provisions of the Contract Act, Secs.69, 60 and 61, towards interest could not be interpreted as payments made by the debtor towards interest "as such" and (3) that the suit brought by Chaudhri Gopinath having been filed when more than six years had expired from the execution of the bond, held that the present application for a decree under Section 90 of the Transfer of Property Act could not be granted and dismissed the decree- holder's application. The decree-holder comes here in appeal and contends that under the circumstances of the case the payments made by the judgment-debtor must be held to be payments coming within Section 20 of the Limitation Act, namely, payments of interest on debt paid "as such" before the expiration of the prescribed period by the person liable to pay the debt.

(3.) The bond in suit was, as already stated, executed on the 21 March 1884, and there has been a series of payments made under it nearly every year from the year 1887 up to the year 1899. With the exception of the very first payment, namely, that oh the 26 March 1887, not one of these payments is marked as being made on account of interest. The payment of 1887 is set out as a payment of Rs. 600 on account of interest.