Nirash Singh and Others vs Baldeo Singh and Others

Manohar Lall Ag. C.J.

This is an appeal by the decree-holders who are aggrieved by an order of the Additional Subordinate Judge of Monghyr dated 11-7-1945, by which he reversed the decision of the learned Munsif passed in an execution case. The question for decision is whether the learned Subordinate Judge was right in holding that the execution of the decree was barred by limitation in the following circumstances.

On 3-8-1939 an instalment decree was passed by which the judgment-debtor was directed to pay up the decretal amount in annual instalments, the first instalment to begin on 1-8-1940. The first instalment was not paid and the second instalment due on 1-8-1941 also remained unpaid. The decree-holder filed an application for execution of the decree on 15-8-1944.

Objection was taken by the judgment-debtor that under the terms of the decree on the non-payment of the first instalment the whole decretal amount fell due and, therefore, the decree-holder should have executed the decree within three years of the date of the first default. The contention did not commend itself to the learned Munsif who came to the conclusion that the first two instalments alone had become time-barred but the decree was executable with regard to the remaining three instalments. The learned Additional Subordinate Judge in appeal took a contrary view as in his opinion upon a proper construction of the decree the whole decretal amount having become due no option was given to the decree-holder from refraining from executing the decree on the happening of the first default. Accordingly he dismissed the execution as being barred by limitation. Hence the second miscellaneous appeal to this Court.

So far as this Court is concerned, the matter is concluded by two decisions reported in Manindra Nath Roy and Another Vs. Kanhai Ram Marwari, decided in 1918 and Braham Kishun Narain Deo v. Harihar Munder AIR 1932 Pat 253 decided in the year 1931. The entire case law of the different High Courts including those of this Court just cited have been reviewed in a most recent Pull Bench decision of the Calcutta High Court in Ranglal Agarwalla v. Shyamlal Tamuli AIR 1946 Cal 500 where the correctness of the decisions of this Court has been approved.

In each case the question must be decided on a proper construction of the decree. In the present case, on a proper construction of the decree, we are satisfied that the decree-holder had an option whether to proceed with the execution of the entire decree on the happening of the first default or to proceed to execute his (decree for those instalments which had not become time-barred at the date of the execution. The view taken by the learned Munsif was correct. The order of the learned Additional Subordinate Judge is, therefore, set aside and the case is sent back to the learned Munsif who will now proceed to execute the decree for the instalments which had not become time-barred.

Ray, J.

I agree.