Gaya Prasad and Another vs Jadunandan Bhagat and Another

Manohar Lall Ag. C.J.

In this appeal by the decree-holder the question for consideration is whether the Court below was right in holding that the execution of this instalment decree was barred by limitation except in so far as the application for execution was made within three years of the fourth instalment.

On 31st October 1938 an instalment decree was obtained by the decree-holder. The instalments were to be paid as follows: On 15-11-1938 first instalment of Rs. 200, on 15.4-1939 second instalment of Rs. 300, on 30-11-1939 third instalment of Rs. 300, and on 15-4-1940 the fourth and the last instalment the balance of Rs. 239-12 6. The judgment-debtor paid the first instalment before it fell due, but he made a default in payment of the remaining instalments. Accordingly the decree-holder started an execution case on 25-1-1943 for recovery of the remaining instalments. The learned Additional District Judge has taken the view that the decree-holder was entitled to execute his decree only for the fourth instalment as the application for execution was filed within three years of the due date of the instalment. Hence the appeal on behalf of the decree-holder.

It is argued on behalf of the appellant that the view taken by the Court was wrong inasmuch as the decree gave an option to the decree-holder allowing him to postpone the execution of the decree even though the instalments had fallen in arrears. We are not in agreement with this contention because the only option of the decree-holder was that he could execute the decree for the second instalment within three years of the due date thereof or for the third instalment within three years of the due date thereof, but not that he could execute the whole decree beyond three years of the due date of the second instalment. This identical question has been considered recently in the Calcutta High Court in Ranglal Agarwalla v. Shyamlal AIR 1946 Cal. 300 where the learned Judges have noticed with approval two Division Bench cases of this Court reported in Manindra Nath Roy and Another Vs. Kanhai Ram Marwari, and Brahm Kishun Narain Deo v. Harihar Munder AIR 1932 Pat. 253 which took a view identical with that taken by the learned Additional District Judge. A Division Bench of this Court recently took the same view in Miscellaneous Appeal No. 340 of 1946 disposed of on 30-7-1946.

The learned Advocate for the appellant drew our attention to the case in Maung Sin v. Ma Tok but in that case so far as the application for the realisation of the instalments due in 1923 and 1924 were concerned, no question of limitation arose because the application for execution was filed in 1924 in respect of the sums which should have been paid in those two years. A question arose with regard to the contention of the judgment-debtor that the application for delivery of possession of the properties on the defaults made from 1916 onwards was barred by limitation. But their Lordships held that each default entitled the decree-holder to obtain delivery of possession of the properties also. This case is, therefore, of no help to the appellant.

For these reasons, the Court below has taken a correct view. The appeal fails and must be dismissed, but without costs.

Das, J.

I agree.