Kanji Mal vs Kanhia Lal

W. Comer Petheram, C.J.—I think that this appeal must be allowed. The question is whether the judgment-creditor is entitled now to execute his decree obtained in 1868. The (acts are that in 1868 the judgment-creditor obtained a decree {or a sum of Rs. 1,100. By the terms of the decree it was provided that the amount should be paid in instalments, the first instalment being Rs. 200, to be paid at the end of the first year, and that the other instalments, should be Rs. 100 at the end of each subsequent year. There was a proviso to the effect that, in the event of any instalment not being paid, the whole amount should become due. This happened in 1868, and in 1877 the decree-holder applied to the Court for leave to execute his decree for the balance due, and the account on which he asked this showed that a payment had been made of Rs. 600, that is to say, of the first five instalments, and the claim was made in respect of default in payment of the sixth instalment. For some reason, which is not very apparent, no order was made, and the application was abandoned by the decree-holder. In 1880 another application was made on the basis of the last one, and the result of this was that the decree-holder obtained an order allowing him to issue execution, and ordering the arrest of the judgment-debtor for the amount due, giving credit for what had been paid. On that order nothing was recovered by the decree-holder; and the question now arises whether the proper time from which to reckon the limitation period of twelve years is the date of the decree of 1868, or the time down to which credit was given for payment of instalments. In my opinion, the proper time from which to reckon limitation is the fifth year from the date of the bond. The whole claim from the beginning has gone upon this basis, and the order passed in 1880 also went upon it. It appears to me that we cannot now go behind that order, and that consequently the judgment-creditor is within time, and may take out execution. This seems to me the only conclusion which is in accordance with justice, because the judgment-creditor has always tried to obtain execution.

Straight, J.

I am of the same opinion.