1. This is an appeal in execution proceedings raising a point of limitation.
2. In 1932 plaintiff, who is respondent here, filed a money suit against the defendant. On July 5, 1933, a decree was passed providing that the sum of Rs. 502 was to be paid by monthly installments of Rs. 25 beginning from August, 1933, and in case of default in payment of three installments, the plaintiff was to be entitled to recover the whole remaining amount. The defendant appealed to the District Judge. While this appeal was pending, on March 17, 1934, the plaintiff filed a darkhast. The original darkhast has not been produced, but no payments had been made by the defendant, and it is common ground that this darkhast must have been one to recover the whole amount remaining due, that is to say, the decree-holder had exercised the option given to him by the decree. A warrant was issued for the attachment of defendant's moveable property, but nothing came of this, and on June 22, 1934, the darkhast was disposed of. On July 31, 1934, the appeal was decided, the order being 'Order of lower Court confirmed. Appeal dismissed with costs.' The darkhast which has given rise to the present proceedings No. 1123 of 1937 was filed according to the concurrent findings of the lower Courts on August 6, 1937, i.e. more than three years from the date of the appellate Court's decree. The original Court dismissed the darkhast as time-barred for that reason. But there was an appeal which was heard by the First Class Subordinate Judge with appellate powers, and he reversed the finding and held that the darkhast was in time.
3. This second appeal is brought on behalf of the judgment-debtor. His learned advocate's principal point is that as the plaintiff had elected to apply to recover the whole amount of the decree remaining unpaid, the decree had ceased to be an installment decree and become in effect one for a lump sum, and therefore the darkhast had to be filed within three years of the appellate Court's decree. This argument undoubtedly derives strong support from a recent judgment of the learned Chief Justice in Hanmant Bhimrao v. Gururao Swamirao : AIR1943Bom36 which was referred to him on a difference of opinion between Mr. Justice Divatia and Mr. Justice Macklin. What has been decided in that case is that if a decree-holder elects to take advantage of a default clause such as that with which we are concerned and applies in execution to recover the whole amount of the decree, he cannot afterwards, even though his darkhast is infructuous, treat the decree as an installment decree. Several English cases were referred to in the judgment, but briefly the ratio decidendi was that the decree-holder in such a case has alternative but inconsistent rights. It is not a case merely of alternative remedies. If he chooses to exercise one of the two inconsistent rights, he ceases to be able to exercise the other. Mr. Chitale who appears for the respondent has attempted to distinguish the case by reason of the fact that in our case there was an appeal and a confirmation of the trial Court's decree after the dismissal of the first darkhast. It is not apparent, however, why that should affect the reasoning in the Chief Justice's judgment to which I have referred.
4. We were referred to two cases in support of Mr. Chitale's argument that the present darkhast is in time. In Darubhai v. Bechar (1924) 27 Bom. L.R. 196 it was held that where an installment decree is confirmed by an appellate Court, the installments become payable only after the date of the appellate decree. No doubt that is so, provided the decree remains an installment decree. If installments are payable at all, then certainly on the authority of this case they are payable not from the dates originally fixed by the trial Court but from dates to commence from the appellate Court's decree and which ought to be fixed by that decree. But if the decree has ceased to be an installment decree or ceased to be executable as an installment decree, this ruling does not apply. The particular point with which we are concerned did not arise in that case. The Court was concerned with an installment decree, but the decree did not give the decree-holder any option to recover the whole amount in case of default. All he was declared to be entitled to do was to make an application under Section 15 B (2) of the Dekkhan Agriculturists' Relief Act, which enables the Court to order the sale of a part of the judgment-debtor's property for the purpose of recovering an installment.
5. In Satvaji v. Sakharlal : AIR1914Bom132 a decree had been passed which directed the plaintiff to pay a certain sum of money to the defendants within six months of the date of the decree and directed further that if he did so he was to pay certain other sums by installments. There was an appeal and the decree was confirmed by the High Court and then within six months of the date of the High Court decree the plaintiff paid the first sum of money as directed. The question was whether this payment was within limitation. It was held that it was. The Court in that case was not concerned with the decree as an installment decree, for the time when the installments were to be paid had not arisen. It is nevertheless clear that, if the plaintiff was entitled to pay the first sum within the specified period of the appellate Court's decree, he would also be entitled to pay the installments, and the time for installments would also have to be fixed with reference to the appellate Court's decree. But here also the point which concerns us did not arise. There was obviously no question there of an installment decree having become one which could only be executed as a decree for a lump sum, by reason of the fact that the decree-holder had exercised his option to treat it as a decree of that kind.
6. We find ourselves unable to accept Mr. Chitale's argument that the confirmation of the lower Court's decree in this case had the effect of converting a decree which had ceased to be an installment decree into an installment decree again. No such reviver can be considered a necessary consequence of a mere confirmation of the original decree. This decree, owing to circumstances which may not have been brought to the notice of the appellate Court at all, had become one which could only be executed in a particular way, viz. by filing darkhasts to recover the whole amount remaining due under it. It could still be executed in that way after the confirmation by the appellate Court. There seems to be no reason why the mere fact of confirmation should mean that it could be executed in any other way. The appellate Court was not concerned with the question of execution at all, only with the question whether the decree as originally passed was right. Or, it is possible to look at the matter another way. It might be said that the appellate Court confirmed the decree in the form which it had then assumed, i.e. as one which could be executed as a decree for a lump sum. It cannot be said that the appellate Court consciously confirmed the decree as an instalment decree, because, if it had done so, it must have fixed new dates for the payment of the installments, and this was not done.
7. In our view the judgment in Hanmant Bhimrao v. Gururao Swamirao governs this case and the decision of the Court of first appeal is wrong. We therefore allow the appeal. The decree of the Court of first appeal is reversed and the decree of the trial Court restored with costs throughout.