JUDGMENT : BANERJI, J. This is an appeal from the judgment and decree of the Subordinate Judge of Allahabad, granting execution of a decree for sale passed on the 22nd of January, 1899, against one Zia-ul-Haq and his wife, Musammat Gul Bibi. The latter was made a party to the suit on the ground that she was a transferee of a part of the mortgaged property. An application for an order absolute for sale under section 89 of the Transfer of Property Act was made on the 7th of December, 1899, and was granted on the 14th of April, 1900. The present application for execution was presented on the 3rd of June, 1903, that is, after the expiry of more than 3 years from the date of the order absolute. The application is on the face of it barred by limitation, but the decree-holder invokes in aid certain proceedings to which we shall presently refer. On the 25th of September, 1902, the decree-holder made an application under section 206 of the Code of Civil Procedure for amendment of the order absolute. As Zia-ul-Haq had in the meantime died, his legal representatives were made parties to the application. Some of these legal representatives being minors, an application was also made for the appointment of Gul Bibi as their guardian ad litem. Upon this application a notice was issued to Gul Bibi to show cause why she should not be appointed guardian of the minors—the 22nd of November, 1902, being the date fixed for hearing. On that date an order was made appointing her guardian of the minors, and a further order was passed directing a notice under section 248, clause (b), of the Code of Civil Procedure to issue. The learned Subordinate Judge has held that a fresh start for the computation of limitation was obtained by the decree-holder from the date of the issue of this notice under article 179, schedule ii, of the Limitation Act, and that as the application for execution was made within 3 years from that date, it was within time. This view of the learned Subordinate Judge cannot be supported. A notice under section 248 presupposes the; presentation of an application for execution and the pendency of such an application in a court.
This view of the learned Subordinate Judge cannot be supported. A notice under section 248 presupposes the; presentation of an application for execution and the pendency of such an application in a court. No such application was pending at the time when the court in this case direct notice to issue under section 248, clause (b). The application pending was the one for amendment of the order absolute. Mr. Chaudri, the learned Advocate for the appellant, conceded in the argument before us that an application for amendment cannot be regarded as an application for execution. Further, although the notice which was actually issued, purported to be notice under section 248, clause, (b), yet it called upon the parties to whom it issued to show cause why the application for amendment should not be granted, So that it was manifestly not a notice which could be issued under section 248, calling upon persons against whom an application for execution had been made to show cause why execution should not be granted. The court below was therefore wrong in holding that the notice issued on the 22nd of November, 1902, saved the operation of limitation. 2. It was, however, argued that the application of the 25th of September, 1902, for amendment of the order absolute afforded to the decree-holder a new start for the computation of limitation. If that application be regarded simply as an application for amendment, it was not an application to take a step in aid of execution. This was decided in the case of Daya Kishan v. Nanhi Begam, [1898] I.L.R., 20 All., 304, and in the rulings referred to in that case. It was further contended that the application for amendment of the order absolute was in reality an application for review of judgment. This contention also is in our opinion untenable. The application in this case was inform and substance an application for amendment, under the provisions of section 206 of the Code of Civil Procedure. It does not ask the Court to review its judgment in the proceedings under section 89 of the Transfer of Property Act, but only prays that the formal order absolute which, it was said did not harmonise with the judgment of the Court be amended. It is, therefore, clearly an application for amendment under section 206, and not an application for review of judgment. 3.
It is, therefore, clearly an application for amendment under section 206, and not an application for review of judgment. 3. The learned Vakil for the appellant relied upon the ruling of the Calcutta High Court, in Kali Prosunno Basu v. Lal Mohun Guha, [1897] I.L.R., 25 Cal., 258, as supporting his contention that the order granting an application for amendment of a decree under section 206 of the Code is an order passed upon review of judgment, within the meaning of article 179, schedule ii, clause 3 of the Limitation Act. That ruling, no doubt, supports the contention of the learned Vakil, but it is opposed to the view taken by this Court in the case of Daya Kishan v. Nanhi Begam. The learned Judges of the Calcutta High Court, in deciding the case referred to were themselves in doubt as to the correctness of their view and relied upon the ruling of this Court in the case of Kishun Sahai v. The Collector of Allahabad, [1881] I.L.R., 4 All., 137. That ruling was considered in the case of Daya Kishan v. Nanhi Begam, and it was observed that the proceeding under section 206 of the Code could not be regarded as proceedings of the same nature as proceedings under section 623. The case of Kishun Sahai v. The Collector of Allahabad was explained in the case of Kallu Rai v. Fahiman, [1890] I.L.R., 13 All., 134, and it was pointed out that the proceedings which were taken in that case were in reality proceedings which could only have been taken under section 623 of the Code. We agree with the ruling in Daya Kishan v. Nanhi Begam, [1898] I.L.R., 20 All, 304 and Torsi Ram v. Man Singh, [1886] I.L.R., 8 All., 492. and Kallu Rai v. Fahiman, [1890] I.L.R., 4 All, 134 referred to in the judgment in that case. We are, therefore, of opinion that the application of the 25th of September, 1902, which professed to be and was in fact an application for amendment only, cannot be deemed to be an application for review of judgment, so as to justify the computation of limitation from the date of the order passed on that application.
We are, therefore, of opinion that the application of the 25th of September, 1902, which professed to be and was in fact an application for amendment only, cannot be deemed to be an application for review of judgment, so as to justify the computation of limitation from the date of the order passed on that application. Consequently the decree-holder in this case cannot avail himself of the application made by him on the 25th of September, 1902, for amendment of the order absolute or of the order passed upon that application. 4. It has, however, been found, and this finding has not been questioned by the learned counsel for the appellants that on the 21st of November, 1900, and the 13th of January, 1902, two payments were made by Zia-ul-Haq which appear in his hand-writing. The payments were made by money-orders and were noted under his signature in the coupons attached to each of the two money-orders by which the money was remitted. These part payments appearing in the hand-writing of Zia-ul-Haq save the operation of limitation as against his legal representatives under the provisions of section 20 of the Limitation Act. We have, however, to consider the case of Musammat Gul Bibi, who is a judgment-debtor, not only as one of the legal representatives of Zia-ul-Haq but also in her own right. 5. As legal representatives of Zia-ul-Haq, the application for execution is within time as against her, it having been filed within 3 years of the dates of the part payments made by Zia-ul-Haq. The lower court has over-looked the fact that she is a judgment-debtor in her own right; the question, therefore, is whether the part payments by Zia-ul-Haq can enure to the benefit of the decree-holder as against Gul Bibi, in her capacity as one of the judgment-debtors to the decree. We are unable to accede to the contention of the learned Vakil for the appellants that part payment by one of the debtors will take the case out of the operation of the statute of limitation against the other debtors who did not make such part payment.
We are unable to accede to the contention of the learned Vakil for the appellants that part payment by one of the debtors will take the case out of the operation of the statute of limitation against the other debtors who did not make such part payment. The principle, upon which a part payment saves limitation is that such payment amounts to an acknowledgment of the debt which in law implies a promise to pay, A payment, therefore, by one of several persous liable to pay, cannot be regarded as an acknowledgment by any of the persons so liable other than the person making it. There cannot be any doubt that a promise by one of the several debtors to pay cannot be deemed to be a promise by the other debtors unless the person making the promise is the agent of the others. On general principle one debtor by acknowledging a debt or making part payment otherwise than as agent of the other debtors, cannot keep alive the right of the creditor against those debtors. Sections 19 and 20 of the Limitation Act do not lay down a general rule to the effect that an acknowledgment or part payment by one of the debtors saves the operation of limitation as against all the debtors. Consequently section 21 of the Act cannot be deemed to be an exception to the rule. We agree with the learned author of Mitra on the Law of Limitation that “section 21 mentions those cases only in which the act of one of a set of persons is likely to be considered as the act of the others, and by way of explanation it tells us that even in these cases the acknowledgment of one shall not renew the period of limitation against others.” See page 304, 3rd edition. In this view, part payment by Zia-ul-Haq cannot save the operation of limitation against Gul Bibi, and the application for execution must be held to be time-barred as against her in her personal capacity as a judgment-debtor. We accordingly allow the appeal and dismiss the application for execution in so far as it seeks to enforce the decree against Gul Bibi, otherwise than as one of the legal representatives of Zia-ul-Haq. She will get her costs in this Court and also in the court below, including, in this Court, fees on the higher scale.
We accordingly allow the appeal and dismiss the application for execution in so far as it seeks to enforce the decree against Gul Bibi, otherwise than as one of the legal representatives of Zia-ul-Haq. She will get her costs in this Court and also in the court below, including, in this Court, fees on the higher scale. As against the legal representatives of Zia-ul-Haq, the decree-holder is entitled to execute the decree, and the order of the court below must be affirmed. 6. The decree-holder has referred an objection under section 561 of the Code of Civil Procedure in respect of the order of the court below refusing to bring to sale the income from the markets of Gaura and Bharwari. As the order absolute obtained by the decree-holder did not order the sale of this property, the decree-holder in execution of the decree obtained by him is not entitled to bring this property to sale, and the order of the court below in this respect is right. The objection, therefore, fails, and is dismissed with costs.