Rajeswara Rau and Others vs Hari Babandhu and Others

Shephard, J.—The decree passed on the 11th October 1887 provided for the payment of a certain sum in four annual instalments, the date

fixed being the 11th of October 1888 and the following years; and it was further provided that if default were made in the payment of any

instalment, then, without reference to the succeeding instalments, the whole amount should be paid with interest at Rs. 1-8-0 per cent, per mensem.

The present application for execution of the decree in respect of the instalments due in 1890 and 1891 was made on the 7th October 1893. This

application is clearly not barred by the law of limitation if payment was made of the first two instalments, or if the decree-holder waived the

judgment-debtor''s default. The decree-holder adduces evidence to show that payments were made in 1888 and 1889, and this evidence was

accepted by the District Munsif.

The District Judge''s finding on the point is not a positive finding, and as a finding in the reversal of a Court of First Instance is most

unsatisfactory. Apparently the District Judge considers that some payments may have been made in those years, although the whole instalments

were not paid. The proof of any payment made in respect of the instalment of 1889 is, however, clearly material, because such payment accepted

by the decree-holder would be evidence of waiver by the latter. If there was waiver of the default in that year the balance payable under the

decree did not become payable until default was made in the next year, and that default would fall within three years of the date of the application I

think the Judge was also wrong in refusing to recognize payments, because they were not certified to the Court under the 258th Section Hurri

Pershad Chowdhry v. Nasib Singh ILR 21 Cal. 542. If there was no payment in 1888 and 1889, and no waiver of the default, I think the Judge

was right in dismissing the application. The case just cited is an authority for this position which, in my opinion, is clearly the right one, and I do not

think that the decision in Appayya v. Papayya ILR 3 Mad. 256 obliges me to take the contrary view. The point which arises here was not the

actual point decided in that case. The decision in Venkatasami v. Sanyasi Appeal against Order No. 100 of 1893 unreported to which I was

referred is consistent with the view which I adopt.

I must reverse the order and remand the appeal to the District Court for disposal. Costs will follow the result.