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Kantilal Jesingbhai Shah Vs. Amratlal Mansukhram Shah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 678 of 1941
Judge
Reported inAIR1943Bom260; (1943)45BOMLR497
AppellantKantilal Jesingbhai Shah
RespondentAmratlal Mansukhram Shah
DispositionAppeal allowed
Excerpt:
.....that the decree created a single judgment debt payable by instalments, and that it did not create seventy-six separate judgment-debts so as to attract the application of article 182, para 7, of the indian limitation act;;(2) that, therefore, when any instalment was paid, it was a part payment of the whole debt, and it operated under section 20 of the act to start a fresh period of limitation for the whole amount of the debt remaining unpaid and not at the time barred by limitation. - - i am told that if the decree had been worked out according to its terms, it would have involved payment of seventy-six instalments, and the last instalment would have been payable on september 15, 1936. from time to time instalments were paid and the several payments were endorsed on the decree, and..........were paid and the several payments were endorsed on the decree, and signed by the judgment-debtor. instalments extend from july 1980, to august, 1937, and, attributing the payment of each instalment to the earliest of the instalments then due there was at no time an instalment which was three years in arrears. now both the lower courts have held that the case' is governed by article 182, paragraph 7, which provides that for the execution of a decree of any civil court, where the application is to enforce any payment which the decree directs to be made at a certain date, the period allowed is three years from such date. so that i agree with the lower courts that in the case of each instalment limitation runs from the due date for the payment of that instalment, and if an.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of the District Judge of Ahmedabad upholding the decision of the Subordinate Judge. The question raised is a point of limitation on which there seems to be no authority .

2. The plaintiff's claim is based on a consent decree passed on March 29, 1930. In my opinion the question raised depends on the true construction of that decree, and I will refer later to its exact terms, after discussing the facts which give rise to the question; but stating it shortly, the decree directs payment of Rs. 1,672 odd, the amount to be payable by instalments of Rs. 22-8-0 each per month, and the peculiar feature of the decree is that there is no default clause providing that if any instalment, or stated number of instalments, be in arrear, the whole amount due shall become payable. The' only penalty for non-payment of an instalment on the due date is that it is to carry interest. I am told that if the decree had been worked out according to its terms, it would have involved payment of seventy-six instalments, and the last instalment would have been payable on September 15, 1936. From time to time instalments were paid and the several payments were endorsed on the decree, and signed by the judgment-debtor. Instalments extend from July 1980, to August, 1937, and, attributing the payment of each instalment to the earliest of the instalments then due there was at no time an instalment which was three years in arrears. Now both the lower Courts have held that the case' is governed by Article 182, paragraph 7, which provides that for the execution of a decree of any civil Court, where the application is to enforce any payment which the decree directs to be made at a certain date, the period allowed is three years from such date. So that I agree with the lower Courts that in the case of each instalment limitation runs from the due date for the payment of that instalment, and if an instalment was allowed to become three years in arrears, that instalment would be barred, and s, 20 would not operate upon it. But it is argued for the appellant that the effect of Section 20 is that every payment of an instalment is a part payment of the debt due under the decree, and therefore starts a fresh period of limitation in respect of all instalments then due, and not already barred. Section 20, so far as material, provides that where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made The lower Courts have rejected that argument and have held that each instalment must be dealt with separately, and it must be recovered within three' years from the of the debit due under the decree, and therefore starts a fresh period of limitation in respect of all instalments then due, and not already barred. Section 20, so far as material, provides that where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or due date and the payment of another instalment has no operation upon it. That really involves holding that the decree constitutes seventy-six separate debts, each instalment being a debt, and if that is so, no doubt the lower Courts are right in their decisions. The payment of one instalment, that is to say of one debt, cannot have any effect upon the right to recover another debt. But on the other hand if the whole debt under the decree is one, then it seems to me that every instalment paid is a part payment of that debt, and operates to create a fresh period of limitation from the date of the payment of the instalment in respect of the whole amount of the debt then due and not statute barred. Therefore the question turns, to my mind, entirely on the construction of the consent decree, the question being whether that decree creates a single debt payable in seventy-six separate instalments or creates seventy-six separate debts.

3. The decree is expressed to be in terms of an award and orders that Amratlal, the defendant judgment-debtor, do pay the plaintiff Kantilal Rs. 1,672-10-9 in the following instalments and it goes on :

The aforesaid decree amount shall be paid by instalments of Rs. 22-8-0 each every month. The first instalment is to be paid on May 15, 1930, and thereafter the whole amount is to be made up by payment of a monthly instalment of Rs. 22-8-0 on the 15th of every month. If any instalment is not paid in time then interest at the rate of six per cent, per annum shall accrue due on the amount of that instalment and the plaintiff shall recover the same accordingly together with interest. If it be necessary to make an applicaion to the Court for execution for the recovery of the money Kantilal Jesingbhai is at liberty to recover the amounts of instalments in arrears together with the costs of execution.

Now as a matter of construction of that decree it seems to me clear that it creates a single judgment debt payable by instalments, and that it does not create seventy-six separate judgment debts. To illustrate the point, I will suppose that the agreement between the parties had rested in the agreement and had not been embodied in a decree, so that the agreement would have to be enforced by a suit instead of in execution of a decree. On an agreement in this form the plaintiff could no doubt sue for each instalment as it became due; but if before filing his suit he waited till (say) six instalments were due, I have no doubt that he would be bound to sue for all the six instalments, and if he limited the relief claimed to one instalment, the other five instalments would be irrecoverable by virtue of Order II, Rule 2. That, to my mind, illustrates the proposition that the claim to all the instalments arises on a single cause of action for a single debt. If the debts were separate, then the right to recover them would constitute separate causes of action; but if there is one debt payable at different times, then the cause of action for the whole debt is the same. In my opinion on this decree there is only one debt, payable by instalments. The result is that when any instalment is paid, it is a part payment of the whole debt, and it operates to start a fresh period of limitation for the whole amount of the debt remaining unpaid, and not at the time barred by limitation.

4. In my opinion therefore the decisions of the lower Courts were wrong. The appeal must be allowed with costs throughout. The order dismissing the darkhast is set aside and the darkhast will proceed.


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