Bakhtawar and Others vs Zahur Khan and Another

Duthoit, J.—We do not agree with the Lower Appellate Court that it is immaterial whether four annual instalments had or had not been paid under the decree, for we consider that if they were not paid, the execution of the decree was time-barred We are unable, however, to accept the contention of the learned pleader for the appellants, that cognizance of payment of such instalments is barred by the terms of Section 258 of the Civil Procedure Code. This contention is opposed to the ruling of a Division Bench of this Court in Sham Lal v. Kanahia Lal ILR All. 316 which followed and approved a Full Bench decision of the Calcutta Court--Fakir Chand Bose v. Madan Mohan Ghose 4 B.L.R. 130.

We reverse the decision of the Lower Appellate Court upon the preliminary point noted above, and remand the case for disposal on the merits, after ascertainment of the fact whether the four instalments were or were not paid under the decree as asserted by the decree-holders and denied by the judgment-debtors. The costs of this appeal will abide the final result.