JUDGMENT Maclean, C.J. - It seems to me to be premature to discuss the points of law that have been argued before us, because we are not in possession of the facts which would enable us to do so with profit. The real point in the case is whether the claim of the Plaintiff is, as against the Secretary of State, barred by the statute of limitation. There is no doubt upon the pleadings and upon the admitted facts of the case, that the suit, prima facie, was so barred, but the Plaintiff says that the claim is not barred, because the claim being one for money for work done, there has been a part payment, within the meaning of sec. 20 of the Limitation Act, and that a new period of limitation begins to run from the time of such alleged part payment. Upon the question of part payment no evidence was taken in the Courts below, though the Plaintiff was desirous of adducing such evidence. It is conceded, that in the year 1895 a sum of Rs. 81-10-0 was paid, either by the Executive Engineer of the Public Works Department of Akhayapada Jajpur or by some one on his behalf, to the Plaintiff, and this is the part payment alleged. The Judge in the Court below says that, "the other papers filed show that the payment of Rs. 81-10-0 was not made as a part payment, but as a payment in full of all that was found to be due to Plaintiff but it is difficult to see where he got this from, when no evidence was put in. The Plaintiff wanted to put in the books of the Executive Engineer which, he said, would show that the payment was a part payment within the meaning of sec, 20 of the Limitation Act. Without seeing the books, the District Judge, in effect, said that they would show nothing of the sort. But, I think, the Plaintiff ought to have had an opportunity of putting in the books, and I do not see how we can properly decide whether the payment was or was not a part payment, unless evidence is gone into on that point. But, I think, the Plaintiff ought to have had an opportunity of putting in the books, and I do not see how we can properly decide whether the payment was or was not a part payment, unless evidence is gone into on that point. I think the Court below was wrong in not taking evidence on that point and the case must be remanded to enable the Plaintiff, upon whom the onus rests, of making out his case, to show that the payment of Rs. 81-10-0 made in 1895 was a part payment only ; and, in dealing with this question, the Court below must have regard to the proviso to sec. 20 of the Limitation Act, and to the decision of a Full Bench of this Court in the case of Mukhi Hoji Rahmuttulla v. Coverji Bhuja I. L. R. 23 Cal. 546 (1896). 2. There is one other point to which I must refer. The suit was originally brought against the Executive Engineer of the Public Works Department of Akhayapada Jajpur, no individual being named as Defendant. The plaint, however, was subsequently amended by making a Mr. Hewett, the then Executive Engineer, a Defendant, and he was described as Executive Engineer of the Public Works Department of Akhayapada Jajpur. When that was done, the suit was within time. On the 2nd of February 1898, the Secretary of State for India in Council was made a party, not by way of substitution, but as an additional Defendant. The Secretary of State contends that he comes within sec. 22 of the Act, and that, as regards him, the suit must be deemed to have been instituted at the time when he was made a party, namely, on the 2nd of February 1898, in which view, subject to the question of part payment, the suit would be out of time. The Plaintiff replies that he always intended to sue the Government, that he made Mr. Hewett a party as representing the Government, and that the Secretary of State was only made a party to rectify the mistake he made in making Mr. Hewett a party as representing the Government, and in substitution for him. I do not think this argument can prevail. 3. The Secretary of State was not substituted for Mr. Hewett, for Hewett is still retained on the record, and not only is Mr. Hewett a party as representing the Government, and in substitution for him. I do not think this argument can prevail. 3. The Secretary of State was not substituted for Mr. Hewett, for Hewett is still retained on the record, and not only is Mr. Hewett retained on the record, but the Plaintiff asks for a decree against him and the Government, both or either of them, as also the costs of the suit. It is difficult, under these circumstances, to say that Government was made a party by way of rectification or substitution for Mr. Hewett. I do not think that the case of Manni Kasaundhan v. Crooke I. L. R. 2 All. 296 (1879), referred to by the learned vakil for the Appellant, applies to the case of the Secretary of State, having regard to the special provisions of the CPC as to suits against the Government. As regards then the Secretary of State the suit must be taken to have commenced to run as from the 2nd of February 1898. 4. I do not go into the question of acknowledgment of liability, so as to bring the case within sec. 19 of the Act, as that question has never been raised, and it is too late to allow it to be raised now. The result is that the case must be remanded, and the best course to adopt is to send the case to the lower Appellate Court either for that Court to take the evidence as to part payment or to direct the first Court to take it, and for the lower Appellate Court to decide the case upon the evidence before it. The costs will abide the result. Banerjee, J. 5. I agree with the learned Chief Justice in thinking that this case must go back for the determination of the question of limitation upon evidence. The Plaintiff-Appellant brought this suit to recover the price of work done ; and the party sued was described originally as the Executive Engineer of the Public Works Department of the Akhayapada Jajpur Division. The plaint having been returned for amendment, it was amended first by the name of Mr. Hewett being inserted as the then Executive Engineer of that division, and subsequently by the Secretary of State for India in Council being added as a Defendant." The Courts below have held that the claim as against Mr. The plaint having been returned for amendment, it was amended first by the name of Mr. Hewett being inserted as the then Executive Engineer of that division, and subsequently by the Secretary of State for India in Council being added as a Defendant." The Courts below have held that the claim as against Mr. Hewett, Executive Engineer, was not tenable as he had no personal interest in the contract upon which the suit was based ; and they have dismissed the claim as against the Secretary of State on the ground that it was barred by limitation at the date when the Secretary of State was added as a Defendant. 6. In second appeal it is contended, on behalf of the Plaintiff-Appellant, that the Courts below are wrong in law in dismissing the suit as against the Secretary of State on the ground of limitation, first, because the addition of the Secretary of State as a party, Defendant, was not really the addition of a party within the meaning of sec. 22 of the Limitation Act, but was only the rectification of a misdescription in the plaint of the party originally sued ; secondly, because even if the suit against the Secretary of State be deemed to have been instituted on the date on which he was made a party, limitation was saved by the part payment referred to in para. 7 of the plaint ; and, thirdly, because limitation was further saved under sec. 19 of the Limitation Act by an acknowledgment of liability as shown by the letter of the 16th of July 1895. 7. In support of the first contention, the cases of Manni Kasaundhan v. Crooke I. L. R. 2 All. 296 (1879) and Pragilal v. Maxwell I. L. R. 7 All. 284 (1885), were relied upon ; and it might, at first sight, seem that the claim was really brought against the Government from the beginning, and that the addition of the Secretary of State was but a rectification of the description of the Defendant. 296 (1879) and Pragilal v. Maxwell I. L. R. 7 All. 284 (1885), were relied upon ; and it might, at first sight, seem that the claim was really brought against the Government from the beginning, and that the addition of the Secretary of State was but a rectification of the description of the Defendant. But, as has been pointed out in the judgment of the learned Chief Justice, the terms in which the amendment of the plaint has been made, go clearly to negative any such supposition : for the Plaintiff does not simply substitute the name of the Secretary of State as the Defendant in the case, but adds his name leaving the name of Mr. Hewett, Executive Engineer as the first Defendant ; and not only that, but in the 12th paragraph of the plaint he prays that the Court may be pleaded to pass a decree against the Defendants or against any one of them as the Court may deem proper. The first contention therefore must fail. 8. In support of the second contention, it is argued that the Court of Appeal below is wrong in holding that the payment of Rs. 81-10 could not be part payment within the meaning of sec. 20 of the Limitation Act, without going into evidence on the point. 9. Now, there can be no doubt that the Court of Appeal below has determined the question whether limitation was not saved by the operation of sec. 20 of the Limitation Act, without going into evidence on the point. For although the learned District Judge says, "the other papers filed show that the payment of Rs. 81-10 was not made as a part payment," in the sentence just preceding he observes, "the entry in the books evidently can contain no such admission," and this is said when the books were not before the learned Judge. This is not trying a question of fact upon evidence, but merely speculating upon what the fact may or may not be. If the payment of Rs. 81-10 referred to in paragraph 7 of the plaint was such a payment of the principal of the debt as sec. 20 contemplates there can be no question that the claim as against the Secretary of State would not be barred by limitation. If the payment of Rs. 81-10 referred to in paragraph 7 of the plaint was such a payment of the principal of the debt as sec. 20 contemplates there can be no question that the claim as against the Secretary of State would not be barred by limitation. The question consequently is whether it was such a payment, and that question is one which has to be determined by the lower Court upon evidence. 10. In connection with this point, I should add that the learned Senior Government Pleader contended that unless the payment, on the face of it, expressly stated that it was part payment of the debt, it could not come within the scope of sec. 20 of the Limitation Act, paragraph 2, and, in support of this contention, he referred to the case of Mackenzie v. (sic) I. L. R. 9 Mad. 271 (1886), and also to certain English cases bearing upon sec 5 of 3 and 4 William the 4th, c. 42. 11. With reference to the case in the Madras High Court, I would observe, with all respect for the learned Judges who decided it, that I am not prepared to go quite so far as that case goes ; and I may add that in an earlier case in the same Court, the case of Jada Aukamma v. Nadimpalla Rama I. L. R. 6 Mad. 281 (1883) a somewhat different view was taken, and that is the view that has also been taken by this Court in the case of In re Ambrose Summors I. L. R. 23 Cal. 592 (1896). 12. As for the English cases I would point out that the language of the English statute is materially different from that of sec, 20 of the Indian Limitation Act, by sec. 5 of the English statute, what is made to have the effect of saving limitation is not part payment but the acknowledgment of liability by part payment. Under sec. 20, whilst in the case of payment of interest the law expressly requires that the interest should be paid as such, in the case of part payment of a principal, the words "as such" do not occur. Under sec. 20, whilst in the case of payment of interest the law expressly requires that the interest should be paid as such, in the case of part payment of a principal, the words "as such" do not occur. Where the payment that is relied upon by the creditor expressly, and on the face of it, shows that it is a payment in full, it may not answer the description required by the second paragraph of sec. 20 of the Indian Limitation Act ; but where the writing evidencing the payment does not say any such thing expressly, I do not think it can be said that it would not come within the scope of sec. 20 unless it expressly says that it is part payment. The question whether a payment is part payment, or payment in full, will have to be determined by the Court ; and the determination of that question will depend upon whether more was or was not due at the date of the payment. Of course the claimant must satisfy all the conditions of sec. 20, one of which is, that the payment must appear in the handwriting of the party making the payment, as was pointed out in the decision of a Full Bench of this Court in the case of Makhi Hoji Rahmuttulla v. Coverji Bhaji. I. L. R. 23 Cal. 546 (1896). As to the third con tendon, I do not think it is open to the Appellant at this late stage of the case to raise it. No question of acknowledgment of liability under sec. 19 of the Limitation Act was raised in either of the Courts below ; nor are we referred to any document which can be taken to amount to anything like an acknowledgment. The letter referred to in the argument may have some bearing upon the question of whether the payment relied upon was a part payment or a payment in full ; but beyond that I do not think it can have any further effect as an acknowledgment of liability.