Ram Kishen and Another vs Gopal Pandharinath and Others

Ansari, J.—The judgment debtors and the decree-holders have filed separate appeals against a decision of the execution Court, by which the execution application dated 31st Thir, 1353 Fasli (5th June 1944 A.D.) has been held to be partly time barred. By the application the decree-holders prayed to execute two yearly decretal instalments for 1352 P. and 1353 F., together with interest due on four earlier paid-up instalments, in all amounting to Its. 4905.8.0. This sum forms part of the decretal amount of Rs. 30 000 that was decreed on 16th Azur 1345 F. (22nd October 1935). The decree says that the entire decretal amount should be paid in fifteen yearly instalments of Rs. 2000 each, and in case of default in payment of any three instalments, execution proceedings for the full amount then due can be taken, It is-an admitted fact that a previous execution application for the entire decretal amount then due was presented, but it was dismissed on being partly satisfied on, 27th Isfandar 1349 F. (30th January 1940 A.D.). The present application is more than three years after the order of the dismissal, and the question for determination in these two appeals is how far this execution, application is within limitation.

The lower Court has held that as the previous application was disposed of at the request of the decree holder and because of compromise, no decision was given in that application, the decree holders have still the right to execute the decree as instalment decree and the prayer to realise instalment for the year 1350 F. is well within time. The judgment, debtors have appealed against this order. The advocate for the appellant has urged that the decree holders having once elected to apply for the full decretal amount on default of payment of three instalments, it is not open to them to revert to the other right of executing instalments, and as the present application is more than three years after the date of the final order on the previous application, this application is clearly time-barred. I am of the opinion that the argument is supported by authorities and should provail. A decree holder having once elected to execute for the full amount in case of default cannot revert to the alternative right and seek execution of instalments. The Bombay High Court has, in a case reported in Hanmant Bhimrao Kalghatgi Vs. Gururao Swamirao Kulkarni, , held that is an instalment decree with'' option to apply for the full amount in case of default the creditor has on such default two rights, he can either recover the amount by instalment or he can at once realize the entire amount; these two rights are inconsistent and he cannot exorcise both of these; corresponding to the rights are the two obligations of the debtor and on exorcise of the either right, the obligation of the debtor becomes fixed; it is immaterial whether the alternative remedy baa been barred by passing of judgment. The ruling has been followed in Anr. case of the same High Court, which is reported in Lakskman Krishna v. Parvatibai AIR 1913 Bom. 63. It is further supported by a single Judge decision of the Oudh Chief Court, reported in Mr. Hidayat-ul-Nissa v. Jalaluddin AIR 1941 Oudh 95. In the light of these rulings, the decision of the lower Court that unless judgment be passed, the decree-holder still has the right of re-electing and executing the decree as instalment decree cannot be upheld. I am also of the opinion that the other ground of the lower Court''s decision that as the previous application was dismissed on compromise the creditor has still the right of re-election is open to serious legal objections. An executing Court cannot take notice of any adjustment that has not been recorded. In the file, I find no such adjustment recorded and I, therefore, hold that the decree-holders having previously filed an application for the full decretal amount are not entitled to pray for the execution of the two instalments and this execution application having been presented more than three years after the date of the final order on the previous application is barred by limitation unless there are some other grounds to save it from being time barred.

The advocate for the decree, holders argues that such other grounds exist in this case, because between the dates of the order dismissing the previous application and the filing of the present application the judgment debtors themselves admit having made two payments in 1351 fasli and 1362 Fasli both of them are within three years of each other as well as within three years of the date of the final order, and therefore, the present application is well within time, There are difficulties in deciding the application to be within time on these two part payments. There are several judgment, debtors and if the decree hag been passed against them in their capacity as joint contractors, partners or mortgagors, the payment will save limitation only against the judgment-debtors, who have made the payment. I have not sufficient material before ma in this appeal to determine whether the payments were by all or by some only, and if it be by some only, whether the decree was passed on such basis as would exclude it from the operation of Sub-section (2) of Section 21, Limitation Act. The same difficulties arise if the writings by which the payments were made be treated as acknowledgments. The particular documents are not before us and it is not clear whether those writings were by all or some of the judgment-debtors. If it be by some, then limitation against the Ors. would not be saved. Having regard to all the circumstances of the case, I am of the opinion that it would serve the ends of justice if the case be remanded to the executing Court to decide afresh the question of limitation on the basis of these part payments or acknowledgments. Of course, the decision that the application being for execution of decretal instalment and therefore within limitation, has been overruled and cannot be re-agitated.

In para 3 of their execution application, the decree holders allege that the judgment-debtors paid the instalment for 1349 Fasli in 1351 fasli, but the lower Court has held that as the payment was made specifically towards a particular instalment of 1351 fasli, it could not be appropriated and the execution for 1349 Fasli instalment was time barred. Against this part of the order, the decree holders have appealed. This instalment is for the year following the filing of the application for the full amount, and it having been decided that on exercise of the option the decree ceases to be an instalment decree, it is unnecessary to decide about any one instalment after that date to be time-barred. The question in the case now is how far the application for realization of the entire amount is within time, and the case is being remanded for determination of that question. As the instalment forms part of the full amount, if the amount is held to be within limitation, that decision will cover this instalment also. The result is that this part of the decision of the lower Court is also over-ruled.

Both the appeals are, therefore, allowed. The decision and the order of the executing. Court under appeal are set aside and the case is remanded for decision on the question of limitation in light of the observations made in this judgment, I make no order as to costs. This judgment will cover both the appeals.

Naik, C.J.

I agree.