1. This is a plaintiff's appeal from an order of the Civil Judge, Aligarh,. reversing an order of the Munsif of Kasganj by which a final decree under Order 84, Rule 5, Civil P.C., was directed to be prepared. The facts necessary for the purposes of this appeal may be stated as follows : On 2lst November 1936 a preliminary decree in a suit brought on the basis of a mortgage was passed in the following terms:
It is ordered that the claim of the plaintiff for the recovery of Rs. 2140 with pendente lite and future interest at the rate of Rs. 3/4/- per cent, per annum, be decreed. The parties will receive from and pay to each other costs in proportion to their success and failure. Let a mortgage-decree for sale (digrikefalati) be prepared. The defendant shall pay the decretal amount by half yearly instalments of Rs. 310 each. The first instalment will fall due on 15th December 1936, the second instalment on 15th June 1937 and in future the defendant shall continue to pay accordingly. In case of non-payment of any three instalments, the entire unpaid decretal amount shall be payable in a lump sum ba surat adam aday kisi teen eqsat ke baqiya kul motaleba digri ek musht wajib-ul-ada hoga.
2. On 13th January 1941 the plaintiff filed an application for preparation of a final decree under Order 34, Rule 5, Civil P.O. This application was opposed by the defendant on the ground of limitation. Thereupon the plaintiff filed another application praying that in case the Court was of opinion that the application in respect of the entire decretal amount was barred by time, a final decree in respect of instalments which were within time might be prepared. The learned Munsif before whom the applications came on for hearing reached the conclusion that the application for preparation of the final decree was within time so far as the instalments which fell due v within three years prior to the date of the presentation of the application were concerned, and he ordered preparation of the final decree accordingly. From this order, the defendant went up in appeal and the learned Civil Judge, as stated above, reversed the order of the learned Munsif. The learned Civil Judge came to the conclusion that under the terms of the decree no option was conferred upon the plaintiff and consequently the entire decretal amount fell due on 16th December 1937 on which date the right to make an application for preparation of the final decree accrued to the plaintiff. He further held that the application for preparation of the final decree, having been brought more than three years after that date, was barred by time. From this decision the plaintiff has brought the present appeal. In our judgment, the order passed by the learned Civil Judge is correct. It is a matter of agreement that Article 181, Limitation Act, applies to applications of final decrees. Under that Article the limitation provided is three years from the date when the right to apply accrues. There can be no doubt that, according to the terms of the preliminary decree, on default of payment of the first three instalments, the plaintiff acquired a right to make an application for the preparation of a final decree, and, if limitation is computed from the date upon which the third instalment fell due, the application which has given rise to the present appeal would be beyond time. In the decree, we have no words like 'the creditor would be entitled to' or 'the creditor would have the power to recover,' and the expression 'that the entire decretal amount shall be payable in a lump sum' is imperative and is inconsistent with any option having been given to the plaintiff.
3. There is a current of authority in support of the view that the expression 'when the right to apply accrues' means 'when the, right to apply first accrues' and this view is reinforced by the observations of their Lordships of the Privy Council made in Lesa v. Din Mt. Gulab Kunwar , where their Lordships remarked that:
If in the Indian cases the question were 'when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit - their Lordships think that there might be much to be said in support of the Allahabad decisions.
4. If the terminus a quo be the date when the cause of action arises, there is no doubt that it will be the date on which the plaintiff would first become entitled to sue. As was observed by Sir Shah Sulaiman in Ram Prasad Ram v. Jadunandan Upadhia : AIR1934All534 .
the expression 'the right to apply accrued' is more emphatic than the expression 'the cause of action arises'.
if the date when the cause of action arises is to be considered the first date when one becomes entitled to sue for the relief claimed by him, then the date when he becomes entitled to apply is certainly the date when the right to apply by way of enforcing the default clause accrued to the mortgagee when on the first occasion there was a default....
5. It may be that in a particular case the plaintiff may not make an application on the first occasion that he became entitled to make one, but that would not prevent the limitation running against him, which depends upon the time of accrual of the right to make an application. The limitation does not depend upon the forbearance on the part of the plaintiff to exercise his right but upon the date of the accrual of that right and, therefore, it cannot remain suspended by reason of any omission or forbearance on the part of the plaintiff. Reference may be made to the case in Madho Ram v. Nihal Singh ('15) 2 A.I.R. 1915 All. 336, where in the case of an application for preparation of a final decree, a Bench of this Court consisting of Sir Pramada Charan Banerji and Rafiq JJ. held that limitation should be computed from the time when the right to apply first accrued. This case was followed by a Bench of the Calcutta High Court in Akshaykumar Ray v. Abdul Kader Khan : AIR1930Cal329 , in which the learned Judge observed that
it is settled that in a case to which Article 181,. Limitation Act, is applicable, the time runs from the date the right to apply first accrues.
6. Reference may also be made to the case in Hari Mohan Dalal v. Parmeshwar Shahu : AIR1928Cal646 where Rankin C.J. in discussing the principles on which Article 181 is based made the following observations:
In Article 181 the Legislature makes provision not for one definite type of cases but for an unknown number of oases of all kinds. The provision which it makes is specific as regards the period of limitation, but as regards the terminus a quo it is content to state in general language and quite simply the fundamental principle that for the purposes of any particular application time is to run from the moment at which the applicant first had the right to make it.
7. Learned Counsel for the appellant placed strong reliance on the Privy Council case in Mung Sin v. Ma Tok . In our judgment, the decision of their Lordships turned upon the nature of the decree in question in that case. Their Lordships did not lay down any general principles. So far as the application for recovery of instalments was concerned, Article 182(7), Limitation Act, was applied, a provision with which we are not concerned in the present case. So far as the claim for delivery of property was concerned, the decision turned upon the construction of the decree itself. No reference was made to Article 181, Limitation Act, and we do not feel oppressed by that decision and are of opinion that it has no application to the facts of the present case. Reliance was also placed on behalf of the appellant on the case in Ram Dutta v. Mahpal Singh ('38) 25 A.I.R. 1938 Oudh 112. That case is distinguishable upon the ground that there the preliminary decree conferred an option on the decree-holder to obtain a final decree on default of any one instalment when the entire amount unpaid became payable. The learned Judges of the Chief Court observed that the ultimate question in the case before them was really one of the construction of the decree and they felt bound to apply the principle of the ruling in Mung Sin v. Ma Tok to the facts of the ease before them. If there is anything in the judgment of the Chief Court which may be said to be in conflict with the view that the expression 'when the right to apply accrued' means 'when the right to apply first accrues,' we dissent from that decision. The case in Lasa Din v. Mt. Gulab Kunwar as has been observed by Sir Shah Sulaiman in In the Goods of Punchard (1872) L.R. 2 P. 369 does not lay down any general principle. The decision in that case turned upon Article 132, Limitation Act, and on the peculiar relationship between the mortgagor and the mortgagee. The Full Bench case in Joji Prasad v. Sri Chand : AIR1928All629 was not a case of an application for preparation of a final decree and the terms of the decree in that case were essentially different from the terms of the decree in the case before us. That ruling does not affect the question before us, viz., whether in a case where there is no option contained in the decree, the limitation under Article 181 for an application for preparation of a final decree runs from the date when the plaintiff becomes first entitled to make an application.
8. In our judgment, the order passed by the learned Civil Judge is correct and we, accordingly, dismiss this appeal with costs.