JUDGMENT : K. Sankaran, J. The plaintiff decree-holder is the appellant. The question raised in this second appeal is one of limitation. The decree in the case was passed on 11.7.1115. On 24.7.1116 the first defendant filed a petition under Ss. 8, 9 and 15 of the Debt Relief Act (Act II of 1116 of Travancore) and prayed that she may be allowed to pay up the decree-debt in instalments and that the amount of the debt for such payment may be fixed by the Court. After paying a few instalments at the rate admitted by the defendant petitioner, she defaulted to make further payments. The Debt Relief Petition itself was dismissed on 6.4.1118. The decree-holder filed the first execution petition on 11.1.1122. To this execution petition the first defendant raised an objection that the decree had become barred by limitation. The execution Court overruled this objection and held that the instalment payments made under the Debt Relief Petition have kept the decree alive and that therefore there was no bar of limitation for the execution of the decree. On appeal by the defendant, the lower appellate court reversed the decision of the execution and held that the decree has become barred by limitation. Hence this second appeal. 2. During the pendency of the Debt Relief Petition the first defendant had made instalment payments into Court on three occasions i.e., on 27.7.1116, 26.1.1117 and 20.7.1117. The two instalments due in the year 1118 were defaulted and the Debt Relief Petition itself happened to be dismissed on 6.4.1118. Subsequently the 1st defendant is stated to have made one more payment out of court to the decree-holder’s Advocate on 31.1.1119. This payment is denied by the 1st defendant. But on a consideration of the evidence adduced by the decree-holder, the lower courts have concurrently found that the alleged payment on 31.1.1119 is true. We do not see any reason to interfere with that finding in this second appeal. 3. The position taken up by the decree-holder is that the execution petition filed by her on 11.1.1122 being within three years of 31.1.1119 is within time. It is contended that the decree-holder could not execute the decree while the judgment-debtor was making payments under S. 8 and 9 of the Debt Relief Act. S. 10 of the Act lays down that the execution of a decree shall not be in contravention of Ss. It is contended that the decree-holder could not execute the decree while the judgment-debtor was making payments under S. 8 and 9 of the Debt Relief Act. S. 10 of the Act lays down that the execution of a decree shall not be in contravention of Ss. 8 and 9 of the Act. S. 9 prescribes the manner in which the decree debt should be reduced and discharged by making payments in instalments. Cl. 3 of that section lays down that only when the judgment-debtor has committed default in the payment of three consecutive instalments or the last instalment, the decree-holder will be entitled to take out execution for the balance of the amount remaining due under the decree and that in other cases the decree-holder could take out execution only for realising the defaulted instalments. On the strength of these provisions it is argued on behalf of the decree-holder that when the first defendant made the instalment payment on 31.1.1119, the earlier two instalments alone had been defaulted and as such the decree-holder could take out execution for realising the entire amount due under the decree. This contention would have prevailed if the payments made on 31.1.1119 was made and accepted as an instalment payment under S. 9 of the Debt Relief Act. The decree-holder could get the benefit of the suspension of the execution of the decree by virtue of S. 10 of the Debt Relief Act only when valid payments under S. 9 are being made by the judgment-debtor. Such valid payments could be made and accepted by the mutual consent of the parties or under orders of Court. The payment made and accepted on 31.1.11119 does not come under either of these categories. The decree-holder had never conceded the 1st defendant’s right to have the decree-debt discharged by making instalment payments under S. 8 and 9 of the Debt Relief Act. In fact the decree-holder had gone to the extent of contending that the decree-debt in this case was outside the scope of the Debt Relief Act. She had filed objections to the 1st defendant’s Debt Relief Petition and had contended that she had no assets other than the amount due under this decree and that therefore the 1st defendant was not entitled to have this debt discharged by making concessional payments under Ss. 8 and 9 of the Debt Relief Act. She had filed objections to the 1st defendant’s Debt Relief Petition and had contended that she had no assets other than the amount due under this decree and that therefore the 1st defendant was not entitled to have this debt discharged by making concessional payments under Ss. 8 and 9 of the Debt Relief Act. The decree-holder had also contended that the first instalment deposited by the 1st defendant was not proper and sufficient. It was while these objections were pending consideration that the Debt Relief petition was dismissed for default on 6.4.1118. 4. The effect of the dismissal of the Debt Relief Petition was negation of the 1st defendant’s right to have the debt discharged by making instalment payments under Ss. 8 and 9 of the Debt Relief Act. The fact that there was no adjudication on the merits of the objections raised by the decree-holder is of no consequence. She must be deemed to have succeeded in her objections on the dismissal of the Debt Relief petition. That petition has not been revived or restored and as such there has been no scope for any order being passed under S. 15 of the Act fixing the amount of the debt for the purpose of making instalment payments. Similarly there has been no scope for passing an order overruling the decree-holder’s objection regarding the substainibility of the Debt Relief petition and permitting the 1st defendant to discharge the debt under S. 9 of the Act. Under these circumstances it cannot be said that the payment made by the 1st defendant on 31.1.1119 was an instalment payment under S. 9 of the Act. The order dismissing the Debt Relief petition had denied to the 1st defendant the right to make any such instalment payments. The decree-holder who had questioned the 1st defendant’s right to have received that payment as a payment under the Debt Relief Act. On the other hand, consistent with the stand taken by her, the decree-holder can only be deemed to have received the payment towards part satisfaction of the decree-debt. This position is made clear by the memo filed on 31.1.1119 itself by the decree-holder’s advocate. There is nothing in that memo to indicate that the amount received on that date from the defendant was towards any instalment due under the Debt Relief Act. This position is made clear by the memo filed on 31.1.1119 itself by the decree-holder’s advocate. There is nothing in that memo to indicate that the amount received on that date from the defendant was towards any instalment due under the Debt Relief Act. On the other hand it is expressly stated in that memo that the amount was received merely towards part satisfaction of the decree-debt. The decree-holder, who has been consistently maintaining the position that the 1st defendant had no right to pay up the decree-debt under the Debt Relief Act, cannot at this late stage be permitted to turn round and take up totally inconsistent position by saying that the payment on 31-1-1119 was made and accepted as an instalment payment under S. 9 of the Debt Relief Act. No doubt that is the only way in which the decree-holder could now escape from the bar of limitation. But such considerations have no place in deciding the question of limitation. That question has to be decided in the light of the facts as they are. From those facts it is clear that subsequent to the dismissal of the Debt Relief petition on 6.4.1118, there was no scope for the discharge of the decree-debt in this case under the provisions of the Debt Relief Act. The payment on 31.1.1119 was not accepted by the decree-holder as an instalment payment under S. 9 of the Act as is evident from the memo filed on that date by the decree-holder’s Advocate. The Debt Relief petition was by the 1st defendant and the payment dated 31.1.1119 relied on by the decree-holder was not by the 1st defendant. The decree-holder’s Advocate has deposed as P.W. 2 that it was the second defendant who made that payment. These circumstances also indicate that the payment on 31.1.1119 could not have been an instalment payment under S. 9 of the Debt Relief Act, but could only have been a payment towards partial discharge of the liability under the decree. It follows therefore that there is no substance in the decree-holder’s contention that even up to 31.1.1119 the 1st defendant was availing herself of the benefits conferred by the Debt Relief Act and was making instalment payments under S. 9 and as such the decree could not be executed. It follows therefore that there is no substance in the decree-holder’s contention that even up to 31.1.1119 the 1st defendant was availing herself of the benefits conferred by the Debt Relief Act and was making instalment payments under S. 9 and as such the decree could not be executed. Subsequent to the dismissal of the Debt Relief petition on 6.4.1118 there was nothing preventing the decree-holder from executing the decree. His failure to take out execution within three years from that date has resulted in the decree becoming barred by limitation. 5. The memo filed in court by the decree-holder’s Advocate on 31.1.1119 was only a certification of the payment made by the 2nd defendant on that date. Such a mere certification cannot be deemed to be an application to take some step in aid of execution of the decree as contemplated by Art. 182(5) of the Limitation Act, so as to give a fresh starting point of limitation. This position is well settled by the decisions of the several High Courts in India. Vide President, Union Board, Pentapadu v. Venkata Srinivasacharyula (I.L.R. 59 Madras 424), Adya Prasad Singh v. Lal Grrish Bahadur (I.L.R. 55 Allahabad 393), Amarkrishna Chaudhuri v. Jagatbhandu Biswas (59 Calcutta 760) and Abdalkathiru Kunju v. Ayiappan (29 T.L.J. 391). There is also nothing on record to show that subsequent to the dismissal of the Debt Relief petition on 6.4.1118 there has been any valid acknowledgment in writing of the liability under the decree by any of the judgment-debtors in this case. Thus in any view of the case it is clear that the decree in this case became barred long prior to 11.1.1122 and that the execution petition filed on that day is out of time and could only be dismissed on that ground. The finding of the lower appellate court to that effect does not therefore call for any interference. 6. In the result this second appeal fails and it is accordingly dismissed with costs. Dismissed.