1. This is a judgment-debtor's appeal.
2. The decreeholder obtained a decree on the 13th of January, 1938. The decree was an instalment decree whereunder a sum of Rs. 300/- bad to be paid in each subsequent year until the decretal amount was fully satisfied. In all, ten instalments had to be paid. There was a default clause in the decree that in case three instalments fell in arrears, the decree-holder would be entitled to recover the entire outstanding balance of the decretal amount. There was a default by the judgment-debtor in consequence of which an application, for execution claiming the balance of the amount due under the decree was filed on 21-2-1947.
It was held in regard to that execution application that it had been filed after a period of three years had expired since the default and that it was barred by limitation. The application for execution was, therefore, dismissed, the final order of this Court being dated, the 5th of October 1950. The present application was filed on 28-11-1950, and execution of the decree was sought thereby in respect of the instalments due in 1947 and 1948. The execution court has allowed execution to proceed and ordered recovery of the two instalments due.
3. The Court below, upon appeal, affirmed the view of the executing court,
4. Both the Courts below were of the view that the principle of res judicata did not apply to execution proceedings and that the judgment of the High Court dated the 5th of October, 1950, whereby the application to execute the decree on the basis of the default clause had been refused, did not operate as res judicata.
5. Sri Krishna Shankar for the judgment debtor appellant argues that the doctrine of constructive res judicata applies to execution proceedings and that the present execution application was barred by the principle of res judicata because of the judgment of the High Court dated 5th of October, 1950.
6. There can be no doubt that the principle of constructive res judicata applies to execution proceedings and that there could not be a fresh execution application in respect of any instalment qua instalments which could have been recovered on the date when the previous application was filed on 21-2-1947. Even though that execution application sought recovery on the basis of the default clause and sought to recover the entire decretal amount under the decree, the alternative right to recover the instalments which had accrued as individual instalments was in existence when the execution application was filed and recovery of the instalments qua instalments in contra distinction to recovery of the entire amount could also have been claimed by that application and could have been granted by the court.
7. In Ram Prasad Ram v. Jadunandan Upadhya : AIR1934All534 , it has been recognised that there are two rights of an independent character in a decreeholder of an instalment decree. Firstly, there is a right to enforce the default clause and claim the entire amount due under the decree and there is also a right to claim recovery of each instalment as and when it becomes, due and, in Ram Prasad Ram's case, (A) the decree-holder, who had elected to enforce the default clause was yet granted recovery of the instalments when.recovery of the entire amount in a lump sum was not permissible as having been barred by limitation.
8. Recovery by execution of any instalments due upon 21-2-1947 cannot be permitted now as such a right would undoubtedly be barred by the rule of res judicata, but so far as the instalments accruing due after 21-2-1947 are concerned, an execution application for their recovery could still be made within three years of the date when these instalments, in their turn fell due and became payable.
9. Applying Ram Prasad Ram's case (A) to thefacts of the present case, in my view, whatever couldbe recovered, whether on one basis or another, on21-2-1947 must be deemed to have been granted orrefused by the High Court's order dated the 5thof October, 1950.
10. The order of this Court dated 5th October, 1950 dismissed the decreeholder's application upon the view that the application had been made more than three years after three successive defaults had taken place. It is true that that order did not consider the question whether the execution could have been allowed on the basis of an individual instalment, but if the rules of constructive res judicata are to be applied then it must be that if a relief, which could be given upon another basis, was not given, that relief was refused. The judgment of the High Court, dated the 5th of October, 1950 would not, however, affect the recovery of the instalment due in 1948. That Instalment had not become due when the application dated 21-2-1947 was made and that instalment would not be hit by the might and ought rule. In my view, the judgment of the High Court dated 5th of October, 1950 would not operate as res judicata in respect of the instalment due in 1948. That instalment had not become due when the application dated 21-2-1947 was made. Recovery of that instalment, as an individual instalment, could not be sought on that date and it has been recognised in Ram Prasad Ram's case (A) referred to above that there is an independent right to recover an instalment apart from the right to claim the balance of the outstandings due under a decree upon a default being made.
11. The result, therefore, is that this appeal is partly allowed and the orders of the court below are modified to this extent that the decreeholder is held entitled to execute the decree in respect of the instalment of Rs. 300/- due on 13-1-1948 together with interest thereon at the rate already allowed by the court below. Parties are directed to bear their own costs throughout.
12. Sri Krishna Shankar asks for leave to filea special appeal and I grant the same.