BHARGAVA, J - (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned District Judge, Bikaner in a suit for recovery of Rs. 5000 (Rs. 2500/- principal and Rs. 2500/- interest) on the basis of a bond for Rs. 2500/-alleged to have been executed by Jethmal father of defendant on 21. 12. 1931 in favour of the father of plaintiffs.
(2.) THE only question to be decided is whether the courts below have rightly held the suit to be within time. The suit was instituted on 17th January, 1952. In para 3 of the plaint, it was alleged that after the execution of the bond Jethmal paid Rs. 500/- on Baisakh Duga Badi 3, Smt. 1991 corresponding to 2. 5. 34, Rs. 150/- on Chet Sudi 14, Smt. 1997 corresponding to 31. 4. 40 and Rs. 600/- on Magh Sudi 14 Smt. 2002 corresponding to 15. 2. 1946 as interest and made endorsements on the back of the bond in his own hand. Because of the aforesaid payments the suit was claimed to be within time. The trial court decreed the plaintiffs' suit holding that the period of limitation was extended both under secs. 19 and 20 of the Indian Limitation Act (hereinafter called the Act) by the endorsements of payments made by Jethmal on the back of the bond. The learned District Judge in appeal held that the endorsement which could really save the period of limitation was with regard to the payment of Rs. 150/- but which did not contain acknowledgment of subsisting liability and could not therefore be availed of by the plaintiffs for extending the period of limitation under sec. 19 of the Act. He further held that by the evidence of Smt. Jetha, it stood proved that Rs. 150/- were paid by Jethmal towards the principal amount and as such it was sufficient to extend the period of limitation under sec. 20 of the Act. The contention of the learned counsel for the appellant is that it was not open to the learned Judge to hold that Rs. 150/- were paid by Jethmal towards the principal, in view of the clear averment contained in para 3 of the plaint viz. , that all the payments were made towards interest. It is further pointed out that Mst. Jetha's statement was clearly wrong when she stated that Rs. 500/- were also paid towards principal although the endorsement itself shows that it was paid towards interest. In such circumstances the learned District Judge was not right in relying upon Mst. Jetha's statement. It is contended that at the time Rs. 150/- were paid, the law of limitation in force was Bikaner State Limitation Act, 1920 (hereinafter called the Bikaner Act), Sec. 20 (1) of which required that payment of interest on a debt or legacy, should be paid as such by the person liable to pay the debt or legacy, in order that it may extend the period of limitation. Since Rs. 150/- were not paid towards interest as such and was a sort of open payment, it could not extend the period of limitation. It is contended that on the date the Act came into force, the plaintiffs' suit had already become barred by limitation and was not capable of being revived by its provisions. On the other hand it is strenuously urged on behalf of the respondents that the present suit would be governed by the provisions of the Act which was the law in force at the time of the institution of the suit and even though the payment of Rs. 150/- might have been insufficient to extend the period of limitation under the Bikaner Act yet it would extend the period of limitation under the Act. In the alternative it was urged that the endorsement with regard to the payment of Rs. 150/- on the back of the bond clearly amounts to an acknowledgement by Jethmal within the meaning of sec. 19 of the Act so as to extend the period of limitation both under the Bikaner Act and the Act. It would thus appear that the bond was executed on 21. 12. 1931 and Rs. 500 were paid on 2. 5. 1934 within the prescribed period as the period prescribed for recovery of money lent was six years under Bikaner Act. The endorsement with regard to the payment of this amount clearly states that the amount was paid towards interest, and therefore, this payment satisfied the requirement of sec. 20 (1) of the Bikaner Act and extended the period of limitation to a further term of six years i. e. , upto 2nd May, 1940. The endorsement with regard to the second payment of Rs. 150/-does not indicate whether it was paid towards interest or principal and did not satisfy the requirement of sec. 20 (1 ). Learned counsel for the respondents has not supported the view taken by the first appellate court that this amount was paid towards principal as stated by Mst. Jetha and rightly so because the plaintiffs' case was that this amount was paid towards interest (Para 3 of the plaint) and also because Mst. Jetha's statement that Rs. 500/- was also paid as principal was contrary to the endorsement itself wherein the amount was stated to have been paid towards interest. It is also not in dispute that the payment of Rs. 150/- being an open payment was incapable of extending the period of limitation, because of the clear authority of the Privy Council in Rama Shah vs. Lalchand (1 ). The stand taken up by the learned counsel for the respondents as stated above is that the Act which came into force in Rajasthan on 1st April, 1951 would govern the suit as also the payment of Rs. 150/- to extend the period of limitation under sec. 20 of the Act even though it might not have extended the period under the Bikaner Act. In support of this argument reliance was placed on two decisions of this Court in Jethmal vs. Ambsingh (2), Sumermal vs. Rirdichand (3) & Soniram vs. Kanhaiyalal (4), Moheshlal vs. Busunt Kumaree (5), Pitambar Mohapatra vs. Lashmidhar Mohpatra (6 ). Baleswar Prasad vs. Sheikh Lataft Karim (7 ). In Jethmal's case (2) it was held that : "it is firmly settled that the law of limitation relates to the branch of procedural laws and no one can claim a vested right in any period of limitation. It, therefore, follows, without the slightest doubt or dispute, that the law which is applicable to a suit or proceeding is law which is in force when it is instituted. Therefore, such laws normally have received and are entitled to receive retrospective force. " The above proposition of law is not disputed by the learned counsel for the appellant but it is contended by him that it is also equally settled that if a right to sue had become barred by the provisions of the Limitation Act then in force on the date of coming into force of the new enactment then such a barred right is not revived by the application of the new enactment. The Rajasthan cases relied upon by the learned counsel for the respondent do not decide the point urged on behalf of the appellant, but only lay down the above mentioned preposition about which there is no dispute The facts of the case in Sumer Mal's case (3) were, that the cause of action tor the suit arose on 9th October, 1941 when the Act of 1945 was in force. First part payment was made on 9th April, 1947 which extended the period of limitation for six years from 9th April, 1947 coming to an end on 8th April 1953. Then came the Act of 1949 from 27th March. 1949 which reduced the period of limitation for such cases to three years, but contained a saving clause in sec. 4. Under the saving clause a suit could be instituted upto 26th March, 1952. The came the Act of 1954 on 25th January, 1950 under which the suit could be brought upto 24th January, 1952. 1 hen came the Act of 1951 on 1st April, 1951. This Act also shortened the period but contained a saving clause and the suit could be filed on 24th January, 1952 under this Act also. But before the expiry of the period of limitation there was apart payment of 28th November, 1955 which extended the period of limitation upto 27th November", 1954 and thus the suit which was filed on 11th August, 1953 was within time. It was therefore, not a case in which on the date the new Act came into force, the remedy had already become barred by time. Similarly, Soni Ram's case, (4) does not deal with this question. These three cases therefore, are of little assistance to the respondent. The other three cases relied upon by the respondent of course support his contention. There a distinction is drawn between the extinguishment of the right and the remedy. It is pointed out that the law of limitation so far as debts are concerned bars the remedy and does not extinguish the right to recover it. Reference is made to sec. 28 of the Indian Limitation Act which speaks of extinguishment of right for instituting a suit for possession of property at the determination of the period prescribed. Now so far as Baleshwar Prasad's case (7), is concerned, its authority is weakened by a later judgment of the same court. (See Jagdish Prasad Singh vs. Saligram Lal and others (8) observations of Das J. ). It may be pointed out that sec. 2 of the Limitation Act of 1877 expressly provided. "a reference to the Indian Limitation Act of 1871 shall be read as if made to this Act and nothing herein contained shall be deemed to affect any title acquired, or to revive any right to sue barred under that Actor under any enactment thereunder repealed. " This clearly shows that under the Act of 1878, suits which had already become barred could not be revived. It is true that there is no similar provision in the Act of 1908. But this is because in the meanwhile the General Clauses Act, of 1897 had been enacted. Sec. 6 (a) lays down that: the appeal shall not: "revive anything not in force or existing at the time at which the repeal takes effect. " The word 'any thing' used in section 6 (a) is very significant and is wide enough to include both the right as well as remedy. The remedy after all is a right to bring an action and in view of provisions of sec. 6 (a) of the General Glauses Act, the new Act, of Limitation would not revive a right to bring an action which is already barred and is gone unless the new Act contains • a specific provision to that effect. The Indian Limitation Act does not contain any provision for reviving a right to bring an action which had already become barred on the date the Act came into force. There are a number of decisions both of the Privy Council and other High Courts in support of this view. Leaving aside those cases where the right itself had been extinguished by virtue of Sec. 28 of the Limitation Act, mention may only be made of those cases where remedy only had become barred. In Sachindra Nath Roy (9) the plaintiff-appellants who were suing under an indemnity bond executed in their favour by their mortgagee, had made payments to a person with whom the mortgagee had effected a sub-mortgage by deposit of title deeds, after the mortgagee had obtained decrees for sale. The question in appeal was whether at the date when the payment was made the mortgagors were bound to make the payments ; that in its turn raised a question whether at the date of the payment the decrees would have been barred. The Act in force at the date of the decrees was Act of 1877, and the enforcement of the decrees would have been barred before the Act of 1908 came into force. It was held that the Act applicable to the case was that and not of 1908 because the date of the decrees being 26th August, 1905, they became enforceable by proceedings commenced after August 26, 1908. The payment to the representatives of the equitable mortgagees was made on 2nd February, 1910, one year and three months after the statutory period had elapsed, and over thirteen months after January 1, 1909 when the Act of 1908 had come into operation. It was observed that : "there is no provision in this latter Act so retrospective in its effect as to revive and make effective a judgment or decree which before that date had become unenforceable by lapse of time. " In Pearylal Vs. Solu Gir (10) Malik, J. after discussing a number of authorities on the point observed that : - "it is clear therefore, that in the absence of anything to the contrary, if a claim is within limitation according to the old Act on the date when the new Act came into force and a proceeding is commenced after the coming into force of the new Act it is the new Act which would govern all decisions on the point of limitation. If, however, the right to sue or the right to apply had already been barred by the provisions of the Limitation Act then in force, then unless there was something in the latter Act which could be deemed to apply retrospectively to revive claims which had already become barred, the new Act could not be availed of for the purpose of saving limitation. " In Km. Kr. Kr. Ramanathan Chettiar by partner Km. Kr. Kr. Lakshmanan Chettier Vs. N. M. Kandappa Goundan (11), a division bench of that court agreed with the above statement of law and after considering the decisions of the Patna High Court including the case of Baleshwar Prasad (7) and the case of Mohesh Lal vs. Basant Kumari (5) held that : "if a right to sue had become barred by the provisions of the Limitation Act then in force on the date of coming into force of a new Act or amendment then such such a barred right is not revived by the application of the new enactment. It cannot be said in such a case that because the remedies are barred but the rights are not extinguished, such rights can be deemed to be enforceable in a court of law. " This case clearly lays down that even though only the remedies are barred and the rights are not extinguished, a barred right will not be revived by the application of the new enactment. (See also Harkubai Fakirchand Shet vs. Shankerbhai Zaberbhai Gujarati (12) and Gutha Hariharabrahman vs. Doddappanani Janikiramaiah (13) where it was observed by Subba Rao C. J. that: "it is settled principle of law that once a debt has been barred by time, it cannot be revived by any subsequent change in the law of limitation. '' There is thus preponderance of authority for the view that if a right to file an action has become barred it will not be revived by a subsequent law of limitation unless it contains specific for reviving such actions. I respectfully agree with the view taken in Pearey Lal's (10) and Ramanathan Chettiar's cases (11 ). Sec. 20 of the Bikaner Act was amended by Act No. 3 of 1944 and the words "as such" were omitted in the substituted sub-sec. 1 of that section, and the payment of Rs. 600/- made on 15th February, 1946, would have extended the period of limitation provided the claim was alive on that date. But as the payment of Rs. 150/- which could keep the claim alive was an open payment and did not extend the period of limitation - the suit already became barred by time on the date of payment of Rs. 600/- was made. The suit had thus become barred by limitation long before it was instituted and the fact that it was filed when the Indian Limitation Act was inforce,would not go to revive that right and sec. 20 of the Act would not be of any avail to the respondent. The next question is whether the endorsement with regard to payment of Rs. 150/- maund on the back of the bond itself amounts to acknowledgment of liability within the meaning of sec. 19 of the Bikaner Act. Sec. 19 of the Bikaner Act is in terms similar to sec. 19 of the Indian Limitation Act. Sec. 19 and 20 of the Limitation Act are independent of each other but they are not mutually exclusive. Endorsement with regard to payment of interest or principal may also amount to acknowledgment within the meaning of sec. 19. But an endorsement of payment without anything more as showing that there was an acknowledgment of subsisting liability, would not operate as an acknowledgment. Learned counsel for the respondent urges that from the fact that the endorsement was made on the back of the bond itself and the amount paid was certainly lees than the amount of the bond, it should be inferred that the intention of Jethmal at the time of endorsement was to acknowledge his liability. In this connection he has relied upon Bansilal vs. Lal Chand (14 ). The actual words of the entry about payment of interest are not mentioned in the judgment. But it appears from the following observations that while making the entry the debtor had acknowledged the loan also : "the sole question which arises for determination in the present case is whether from this entry acknowledging expressly that a sum of Rs. 18/- had fallen due by way of interest on the loan an acknowledgment of liability in respect of the Khata dated 23rd February, 1954 can be inferred so as to extend limitation under sec. 19 of me Limitation Act. " It appears from the lines underlined by me (italics) that in the entry there was a reference to the loan also. In such circumstances the endorsement was held to be an acknowledgment within sec, 19 the Act. Learned counsel however,has invited my attention to the following observations contained in para 5 that: "further even if the promissory note had not been referred to specifically in the endorsement about the payment, the very fact that the endorsement was made on the back of the promissory note would go to show that the payment had been made towards some other loan, a reference to it would have been made in the endorsement. " The above observations were not essential for the decision of the case in view of the language of the entry. In my view whether an endorsement of payment amounts to an acknowledgment within the meaning of sec. 19 of the Act or not depends mainly upon the language of the endorsement as considered in the light of the surrounding circumstances. It would be too broad a proposition to lay down that every endorsement of payment on the bond itself, implies an acknowledgment of subsidiary liability for the debt. In Zorawarmal vs. Sagarmal, (15) the entry with regard to repayment of Rs. 191/- appeared in the khata itself and the language of the entry was not held as acknowledgment under sec. 19 of the Act. In Ajodhyaprasad Bhagat vs. Gobind Missir and another, (1), there was an endorsement on the back of the mortgage bond. Rs. 11 /- had been paid and it was held that it cannot be construed as being anything more than a statement of the payment and it cannot save limitation as an acknowledgment. " In Kannepalli Chinna Venkata Chelamiah Sastri vs. Meduru Annappornamma (17) it was held that : "where a payment is made without any specification and the debtor does not signify whether he is making the payment of interest as such or of part payment of the principal, there is really no admission on his part, that any further sum is still due from him, and there is therefore no acknowledgment of liability on his part. Consequently, where on the back of a promissory note are written by the maker the words "paid Rs. 10/-" the endorsement cannot be construed as being anything more than a statement of the payment. The sum of Rs. 10/may constitute all which remains due in respect of the debt evidenced by the instrument. " In Managapathi Naidu vs. M. K. Krishnaswami Naidu (18) also the endorsement of payment was recorded on the mortgage bond itself and it was held that : - "a mere endorsement in writing of a payment cannot serve as an acknowledgment of of liability under Sec. 19, Limitation Act unless the Court is able, without overstraining the language, to read into the endorsement not only the fact of a payment but also an implied admision that a further sum is still due. " In Harkubai Fakirchand Shet's case it was held that : "an endorsement on a promissory note that "rs. 65 was paid", on certain date does not amount to acknowledgment of any liability nor does it involve any promise to pay the unpaid, balance. " In the present case also the entry reads thus "rs. 150/- paid in cash on Sunday Smt. 1967 Chet Sudi. Sd/- Jethmal (in his own hand)". From this entry it cannot be inferred that the maker of the endorsement acknowled his liability to any further sum due in respect of the bond. The learned District Judge, was therefore, right in holding that it does not amount to acknowledgement under sec. 19 of the Act. In this view of the matter the suit was barred by limitation on the date it was instituted. The result therefore is that this appeal is allowed, judgment and decree of the courts below are set aside and the plaintiff's suit is dismissed. In the circumstances of the case parties are left to bear their own costs throughout. Learned counsel for the respondent prays for leave to appeal to a larger bench. Leave is granted. . ;