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Judgment
Horwill, J.—The petitioner brought this suit on a promissory note and relied on two indorsements to save limitation. The first was:
On the 3rd of Chitra Suddba of the year Bhava the amount paid in cash is Rs. 10 (Rupees Ten only).
With regard to a payment made a little less than three years later, the indorsement was:
The amount paid on the first day of Phalguna Suddha of the year Dhatu is Rs. 2 (Two rupees).
The defendants remained ex parte but the District Munsiff dismissed the suit on the ground that the indorsements did not save. limitation u/s 20
of the Limitation Act.
It is not denied by the petitioner that the learned District Munsiff was right in saying that Section 20 of the Limitation Act did not save the suit
from the bar of limitation; but he contends that the learned District Munsiff did not consider, as he should have done, whether these endorsements
saved limitation u/s 19 of. the Limitation Act as. acknowledgments. There can be no doubt that if the petitioner had added to his statement of
payments that they were made towards the suit debt, these endorsements would have served as written acknowledgments which would save
limitation; but I do not see how bare statements of payments can serve as acknowledgments of a debt. If limitation is to be saved u/s 19, one must
be able to read into an endorsement not merely that a payment has been made but that a further sum is admitted to be due. In no ease cited before
me has such a bare statement of payment been interpreted as an acknowledgment. The nearest approach to it is the judgment of Sir John
Beaumont, C.J., in Tayerali v. Garabad Sadu AIR 1939 Bom. 252. There were two indorsements in that case. One was that the debtor had given
certain bajri of the value of Rs. 54 towards vasul and then again at the bottom of the document it was written ""Rs. 54 paid as vasul"". These
indorsements were construed by Sir John Beaumont, C.J., in these words:
There is a payment of Rs. 54 on account of the debt, which must mean the debt secured by the document on which this indorsement was made.
I am unable to read in the present indorsements any suggestion that a further sum is admitted to be due by the defendants to the plaintiff.
Another contention raised by the petitioner is that in view of the fact that the defendants were ex parte, the lower Court should not have
dismissed the suit. The learned advocate for the petitioner has referred me to (1920) L.R. 47 I.A. 200 (Privy Council) . , which related to a suit on
an account in which it became clear upon perusing the account that all the items relied on by the plaintiffs were barred by time. The defendant
however was unwilling to rely on the bar of limitation and wanted the suit disposed of on the merits. Their Lordships were of opinion that under the
circumstances the decree was a consent decree. The fact that the defendants remained ex parte does not mean that the decree was a consent
decree; it can only be a consent decree if the defendants appear and admit the claim.
The petition therefore fails and is dismissed.