Full Judgment
Boys, J.
1. In this case one Kamal-ud-din brought a suit against Mohammad Naqi on behalf of whom the present plaintiff, Lala Hargu Lal, stood security for Mohammad Naqi, that the latter would pay the price of the coal sold to him by Kamal-ud-din. Kamal-ud-din obtained a decree against the present plaintiff as surety. In order to obtain a review the plaintiff deposited the amount of the decree under Section 17 of the Provincial Small Cause Courts Act. He made the deposit on the 5th of September 1919. The application for review was dismissed and the creditor withdrew the money on the 21st of April 1920. Subsequently the plaintiff brought the present suit to recover the money from his principal filing his suit on the 20th of April 1923. A plea was taken in the Court of Small Causes that the suit was barred by limitation under Article 81 of the Limitation Act. That Article allows a period of three years from the date 'when the surety pays the creditor.' It is urged that the date of the payment to the creditor was the 5th of September 1919 i.e., the date of the deposit, and the defendant has relied on the case reported as Yinke Supay v. Mauug Kin 60 Ind. Cas. 23 : 3 U.B.R. (1920) 261. The plaintiff urged and the lower Court accepted the plea that limitation commenced to run from the 21st of April 1920 and held that the suit was within time. It is open to argument that the date on which the creditor was paid was the date on which the application for review was actually dismissed because from that date the creditor was entitled to with draw the money but this at least is quite certain that he was not entitled to withdraw the money immediately if was deposited and before the application for review had been dismissed. The plea therefore, as urged by the defendant could certainly not be sustained. Neither party can tell me on what date the application for review was dismissed and, failing to make good his plea that the date of deposit was the date from which limitation commenced to run the defendant applicant here asks me to send for the record in order to ascertain the date on which the application for review was dismissed. On the other hand, the plaintiff opposite party here urges that this Court should not interfere in civil revision upon a question of limitation and has referred me to Raghu Nath Sahai v. The Official Liquidator of the Himalaya Bank, Limited 15 A. 139; A.W.N. (1893) 59 : 7 Ind. Dec. (N.S) 807 and Sarman Lal v. Khuban 17 A. 422; A.W.N. (1895) 112 : 8 Ind. Dec. (N. s.) 592. The latter case is not so clearly in point as the former, for it is not clear that in the latter case the question of limitation did not depend upon a question of fact as well as upon a question of law. The earlier case is, however, directly in point. For the opposite party I am referred to Lt., Col. J.G. Turner v. Jagmohan Singh 27 A. 531 : 2 A.L.J. 297; A.W.N. (1905) 77. Whatever else that case may have decided it certainly did not decide that the Court should interfere on a technical ground where substantial justice had been done. It is perfectly clear in this case that whether the period of limitation should be held to run from the date when the application for review was dismissed or from the date when the creditor withdrew the money, the debt which has been sued for in this case was undoubtedly due from the principal to the surety and unless this Court was to hold that it has no discretion whatever it is indubitably a case in which a discretion should be exercised in favour of the opposite party in this case. I, therefore, decline to interfere and dismiss this application.