Devi Dayalj and others vs Ram Kumari Devi

Nigam, J.—The facts of this case are clear and have been stated by the learned Single Judge who made the reference to the Bench in his order dated 2991959. They also lie within a short compass. The decreeholders Seth Devi Dayal and others obtained a decree against Rani Ram Kumari Devi for a sum of Rs. 5,000/ and odd payable in half yearly instalments of Rs. 272/12/ on 26th August, 1936. The entire amount was made payable in 20 instalments. Seven instalments were paid and then a default was made in respect of three instalments. Thereupon an execution application was filed on 23111941. This was in respect of the entire decretal amount.

A sum of Rs. 481//6 was realised. A second execution application for the entire balance was filed on 1081943. A third was filed on 16121946 and the fourth on 1491949. All these three proved infructuous. A fifth application was filed on 651950. A sum of Rs. 200/3/ was realised. The sixth application dated 31st May, 1951 realised a sum of Rs. 1087/8/ and the seventh application filed on 1511952 brought a sum of Rs. 1031/4/. The eighth application, which is the application in question, was filed on 15121953 for the realisation of a sum of Rs. 2437/4/3.

It will be seen that the original decree was passed on 2681936 and that the first execution application was filed on 23111941. Thus counted from the date of the decree and the date when the first execution application in respect of the whole amount outstanding was filed, the present application for execution would be barred by time under Sec. 48 of the Code of Civil Procedure lithe decreeholders are not permitted to count limitation as and when each of the twenty instalments granted under the decree dated 26th August, 1936 fell due.

Before the learned Single Judge both the parties relied on the case of Abdul Latif Khan v. Mt. Sikandar Begum, AIR 1953 All 283. Neither learned counsel challenged the correctness of that decision. The learned Single Judge was, however, unable to follow how the question of prejudice arose. The learned counsel for the judgmentdebtor has, however today challenged the correctness of the decision. We may in passing mention that the objection of the judgmentdebtor as regards limitation was rejected by the first execution court but was allowed by the lower appellate court and it is now the decreeholders who have preferred thispresent appeal.

The contention of the learned counsel for the respondent is that once the decreeholders have elected to execute the whole decree, they cannot change their position and seek to execute the decree in respect of each instalment as it fell due. In support of his contention the learned counsel has relied on Shrinivas v. Chanbasapagowda Basangowda, AIR 1923 Bom 201 (2), Gulabrao Yeshwant v. Nagan Ghelabhai, AIR 1925 Bom 326 and Pandurang Vishuanath v. Mahadeo Vishweshwar, AIR 1931 Bom 263. All these rulings have already been considered in the Division Bench case of AIR 1953 All 283 (Supra), the correctness of which was not challenged before the learned Single Judge. Before us today the learned counsel for the appellants has relied on Hanmant Bhimrao v. Gururao Swamirao, AIR 1943 Bom 36. This was a case on reference to the learned Chief Justice on difference between the two learned Judges of the Bombay High Court. Then again without giving any reason it was held that the decreeholder could not go back on the option once exercised by him.

We have considered this Bombay case us well as the previous decision of this court in AIR 1953 All 283 (Supra). We respectfully agree with the previous decision of this Court. In the Bombay decision it has been stated that it is not open to the decreeholder to exercise his choice afresh. No reason for his inability to do so has been given. In the Allahabad decision to which a reference has been made in the learned Single Judges order it was clearly stated that unless the judgmentdebtor has been prejudiced, it would be open to the decreeholders to reelect in the matter. What we understand from the use of the word prejudice is that unless the decreeholder is estopped from changing the position, it is open to him to make a fresh election.

It has not been shown to us that the judgmentdebtor has at any time been called upon or has actually done something which she could not have been called upon to do so if the decreeholders had not elected to execute the whole of their decree. The learned counsel for the respondent has not even suggested that the amount realised at any time in execution of this decree was in excess of the instalments that were actually due on the date of the institution of that particular execution application. That being so, it is clear that the decreeholders are not estopped from making a fresh election. The learned counsel has only repeated the argument that once an election has been made, the decreeholder is not entitled to make a fresh

election. He has not given us any reason for his views.

We respectfully agree with the view taken in the case of Abdul Latif Khan, AIR 1953 All 283 (supra), and we do not consider it necessary to make any reference to any larger Bench as was suggested by the learned Single Judge in his referring order.

On the facts of the case it is clear that the decreeholders were in law entitled to make a fresh election. The mere fact that this election was not clearly stated in the execution application is only a clerical mistake and a technical objection and does not appear to have prejudiced the judgmentdebtor in any manner. The argument that could have been urged has already been urged.

We are, therefore, unable to attach any weight to this suggestion.

No other point has been pressed before us. We accordingly accept this appeal and direct that the judgmentdebtors objection as regards limitation be rejected with costs throughout.

Appeal allowed.