JUDGMENT
Jackson, J.
1. Appeal against the order of the Court of the Additional Subordinate Judge of Masulipatam in A. S. No. 65 of 1924 (E. P. No. 258 of 1923 on. the file of the Court of the District Munsif of Avanigadda at Masulipatam).
2. The decree-holder in O. S. No. 57 of 1918 filed an execution application on 26th June 1922. The previous application was on 20th January 1919.
3. In order to save the bar of limitation the decree-holder relies upon a payment under Order 21, Rule 56 made on 31st October 1919, alleging that such payment is tantamount to a payment by the debtor’s agent duly authorised in this behalf as contemplated by Section 20 of the Indian Limitation Act.
4. The question for determination is whether this payment can be described as such.
5. In O. S. No. 6 of 1911 on the file of the Bandar Additional District Munsif there was deposited a sum of Rs. 514 to the credit of the plaintiff, Chandana Veeraswami. This sum was attached before judgment by the present respondent Seshayya who, in O. S. No. 57 of 1918, was suing (along with his heirs) Veeraswami’s son, the present appellant on remote executed by Veeraswami. After obtaining a decree in O. S. 57 of 1918 Seshayya applied under Order 21, Rule 56 to have the Rs. 514 paid over to him. The District Munsif observed on this application E. A. No. 2129 of 1919:
I do not consider notice to decree-holder (that is Veeraswami) or judgment-debtor (that is. judgment-debtor in O. S. No. 6 of 1911) necessary under Rule 179 of the Rules of Practice. The Judgment-debtor has now no interest, and decree-holder’s sons are defendants in O. S. No. 57 of 1918, in which this amount was attached before judgment. Issue cheque.
6. This is the payment alleged by respondent to have been one made by the debtor’s agent duly authorized in this behalf. Now to make good that allegation he must establish that the Court when it made this payment was employed to do the act for the debtor, or to represent the debtor in dealings with third persons. In the present case the Court had never at any time come into direct relations with the debtor. It was only seised of property which the respondents alleged to be the property of the debtor’s father. In such circumstances can the Court be held to be the debtor’s agent? No doubt there are circumstances when a Court occupies this position. It was held in Chinnery v. Evans [1864] 11 H. L. C. 115 that any payment made by a Receiver in pursuance of the order is payment in law by the legal agent of the person liable to pay. In Govindaswami Pillai v. Dasai Goundan [1921] 44 Mad 971 this ruling was applied to a case where purchase money under the Land Acquisition Act was deposited in Court by Government to the credit of the suit, and a decree-holder-mortgagee by consent of the judgment-debtors drew out a sum in satisfaction of his decree. In this case Coutts Trotter. J., stated the following formula:
If a debtor’s assets are so placed either by his own act or by operation of law, that if some other than he alone can release them for the purpose of making payments due from him then the act of that other in operating upon the debtor’s assets must be treated as the act of the debtor himself, the volition of the debtor in such a case being neither requisite nor relevant.
7. Restated with reference to the facts of the present case this formula would run: If a debtor’s presumable assets are so placed by operation of law, viz., a legal attachment, that the Court can release them for the purpose of making payments due from him, then the act of the Court must be treated as the act of the debtor himself, the volition of the debtor being neither requisite nor relevant. The difficulty then becomes apparent. Can it be said that the volition of the debtor is neither requisite nor relevant when a Court is paying out moneys belonging to his father on the assumption that they are the assets of himself? The mere fact that a Court holds moneys belonging to a debtor’s father cannot in my opinion constitute that Court the debtor’s agent. There must be some communication with the son. As observed by Sadasiva Aiyar, J., in the same case [Govindaswami Pillai v. Dasai Goundan [1921] 44 Mad 971] it may not be altogether clear why the Legislature has insisted that the payment shall be by the person or his agent authorized. If there is no fiction, as in English Law, that the payment implies a fresh promise to pay, and the provision is merely in order to exact diligence from the decree-holder, such diligence might be exercised quite independently of the debtor’s volition.
8. In the present case the mere fact that the creditor moved the Court and obtained the money under attachment would satisfy the requirement of diligence. But whether it be logical or illogical the statute does seem to require the volition of the debtor or his agent in this matter. It must be strictly found that the judgment-debtor did exercise his volition or that the circumstances were such that his volition was neither requisite nor relevant. I do not find that the requirements of Section 20 of the Indian Limitation Act have been satisfied and the appeal is allowed with costs throughout.
