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Ramji Lal Vs. Karan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All532
AppellantRamji Lal
RespondentKaran Singh and anr.
Excerpt:
civil procedure code (1908), order xxi, rule 2; order xxxiv, rules 4 and 5 - preliminary decree - decree, ordering payment by instalments and in default of payment of any one instalment, ordering execution for whole amount--default made--payment out of court--application for decree absolute--act no. ix of 1908 (indian limitation act), schedule i, article 181. - .....default was first of all made on the 2nd of february, 1915. such default having been made, the present application was preferred for a final decree under order xxxiv, rule 5. the court below has dismissed the application as being barred by time. the court relying on a decision of this court (affirmed by the decision reported in i.l.r. 38 allahabad, at page 204) has dismissed the application as barred by time. the case referred to was a case of a simple money decree, and the application was for execution. order xxi, rule 2, clause (3), provides that any payment or adjustment which has not been certified in the prescribed manner shall not be recognized by any court executing the decree. the application in the present case was not an application for execution of the decree. under the.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit which was orginally instituted on foot of a mortgage. The suit resulted in a compromise decree which provided that the defendants should pay Rs. 600 by certain instalments therein mentioned and that in default of any one of the instalments, the property should be sold for the full amount of the claim and costs. It is alleged (and we may assume for the purposes of this appeal) that the judgement-debtors paid several of the instalments According to the decree-holder default was first of all made on the 2nd of February, 1915. Such default having been made, the present application was preferred for a final decree under Order XXXIV, Rule 5. The court below has dismissed the application as being barred by time. The court relying on a decision of this Court (affirmed by the decision reported in I.L.R. 38 Allahabad, at page 204) has dismissed the application as barred by time. The case referred to was a case of a simple money decree, and the application was for execution. Order XXI, Rule 2, Clause (3), provides that any payment or adjustment which has not been certified in the prescribed manner shall not be recognized by any court executing the decree. The application in the present case was not an application for execution of the decree. Under the present Code, an application for a final decree is not an application for execution. The case cited therefore has no application. The court below seems to have applied Article 182 of the first schedule to the Limitation Act. The proper article in our opinion is Article 181, and limitation should run from the time when default was made. It will be for the court below to ascertain when default was made if at all. We must allow the appeal, set aside the decision of both the courts below, and remand the case to the court of first instance through the lower appellate court with directions to re-admit the application under its original number in the file and proceed to hear and determine the same according to law. Costs will be costs in the cause.


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