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Joti Prasad and anr. Vs. Srichand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All629
AppellantJoti Prasad and anr.
RespondentSrichand and anr.
Excerpt:
- - 7. i think that if we were satisfied that the practice which has prevailed in this court for the last 14 years or so is contrary to the express provisions of the law, we should have no hesitation in overruling the cases of this court which lay down that rule of practice. i think that the particulars given in an application for execution, if they amount to a certification by the decree-holder that payment or adjustment has been made, are perfectly good and comply with the requirements of rule 2, sub-rule (3). in the obsence of any provision laying down the law to the contrary i must hold that the certificate may be contained in the application for execution itself. if that is permissible there is no good ground for holding that the two cannot be contained in one and the same.....sulaiman, ag. c.j.1. the facts of this case are briefly as follows:2. a suit was compromised between the parties on 16th june 1918. the substance of the compromise was embodied in the decree. reading the decree in the light of the compromise there can be no doubt that it provided that rs. 6,000 would be paid by the defendants to the plaintiffs on 12th july 1918, and the remaining amount would be paid by annual instalments of rs. 1,000 each on 16th june in the following years in succession. the decree further provided that in case of default of two (consecutive) instalments, the defendants will pay the whole of the balance remaining unpaid to the plaintiffs. admittedly rs. 6,000 was duly paid. rs. 1,000 was paid on 1st july 1919 and the decree-holders accepted it.3. on 14th september 1925,.....
Judgment:

Sulaiman, Ag. C.J.

1. The facts of this case are briefly as follows:

2. A suit was compromised between the parties on 16th June 1918. The substance of the compromise was embodied in the decree. Reading the decree in the light of the compromise there can be no doubt that it provided that Rs. 6,000 would be paid by the defendants to the plaintiffs on 12th July 1918, and the remaining amount would be paid by annual instalments of Rs. 1,000 each on 16th June in the following years in succession. The decree further provided that in case of default of two (consecutive) instalments, the defendants will pay the whole of the balance remaining unpaid to the plaintiffs. Admittedly Rs. 6,000 was duly paid. Rs. 1,000 was paid on 1st July 1919 and the decree-holders accepted it.

3. On 14th September 1925, the decree-holders filed an application for execution, out of which this appeal arises, giving credit for two sums of Rs. 2,000 each, stated in the application to have been paid on 12th June 1921, and 14th June 1923. They claimed that under the compromise decree they were entitled to recover the instalments of 1924 and 1955 together with interest. It is clear that their application was filed after all the instalments had fallen due, even without enforcing the default clause.

4. On 29th October 1925 the defendants filed an objection denying that they had made any payments in 1921 and 1923 and pleading that under the default clause the whole amount became due in June 1921, and that the present application, being made more than three years after that date, was barred by time. It was further pleaded that inasmuch as the alleged payments had not been duly certified, they could not be taken cognizance of by the Court. After this, namely, on 24th April 1926, the decree-holders filed an application certifying the payments alleged to have been made. The learned Subordinate Judge dismissed this last application from which the decree-holders have attempted to file an execution appeal, which is connected. He also dismissed the application for execution, holding that it was barred by time. The main appeal has been preferred from this order.

5. The Bench before whom the case came up in the first instance has referred five questions to this Pull Bench. The first four turn on the provisions of Order 21, Civil P. C, and the last one on Article 182, Limitation Act.

6. There can be no doubt that the view taken by this Court in a series of cases, as regards the provisions of Order 21, Rule 2, has not been accepted by a great majority of the Judges of the other High Courts although even in these other High Courts there has not been always a complete uniformity.

7. I think that if we were satisfied that the practice which has prevailed in this Court for the last 14 years or so is contrary to the express provisions of the law, we should have no hesitation in overruling the cases of this Court which lay down that rule of practice.

8. The principle of 'stare decisis' does not apply to such decisions, as they cannot be considered to have affected any rights in property or title, or to have affected contracts and other dealings. Another reason for not hesitating to reconsider those rulings is the circumstance that at least one learned Judge has recently expressed doubt on the soundness of those rulings. And, lastly, the present Full Bench has been constituted by his Lordship the Chief Justice with the express purpose of reconsidering those cases, presumably in view of the fact that a different view prevails in the other High Courts.

9. The first question is:

Whether there is any period of limitation applicable to a decree-holder certifying a payment under Order 21, Rule 2, Sub-rule (1), Civil P.C.

10. It is obvious that there is no express article of the Limitation Act which is made applicable to the certification of payment by the decree-holder similar to Article 174, which applies to an application by the judgment-debtor under Order 21, Rule 2, Sub-rule (2). We have therefore only to consider whether Article 181, the omnibus article for applications, is applicable. The Calcutta High Court in the case of Bali Mohammad Sah v. Aijanmai A.I.R. 1922 Cal. 30. has considered it to be applicable. With great respect, I cannot agree. Order 21, Rule 2, Sub-rule (1) speaks of 'certifying payment.' It does not say 'apply to certify' or 'apply that the certificate may be recorded.' All that the decree-holder is to do is to declare that he has received payment. He need make no application to the Court, and may not ask the Court to do anything at all. Such certificate may not contain any prayer to the Court. After such payment is certified, it is the duty of the Court to record it. Sub-rule (3) speaks of 'certified or recorded.' Thus a certificate by itself is sufficient. It therefore seems to me that the certification by the decree-holder is not by way of application. If no application is necessary, Article 181 cannot apply.

11. Another reason for holding that Article 181 is inapplicable is that it allows three years from the date when the right to apply accrues. Certification is not a right of the decree-holder. It is a duty cast upon him. I have therefore no hesitation in answering the first question in the negative.

12. The second question is:

If not, must a decree-holder certify payment before a decree will be time barred, if the payment sought to be certified by the decree-holder be ignored?

13. The logical result of holding that there is no bar of limitation under the Limitation Act is that no restriction as to any time limit can be imposed on the certification. To say that a decree-holder must certify payment before his decree becomes prima facie time barred is undoubtedly to impose a time-limit. In my opinion there is no justification for such a view. Further, the requirement of the certification being made before the decree becomes prima facie time barred may sometimes make the certification impracticable or even impossible. Payment may be made to the decree-holder at a distant place just a short time before the three years are about to expire, and it may be impossible or impractical for the decree holder to rush to the Court in time and certify the payment.

14. In the case of Baij Nath v. Panna Lal A.I.R. 1924 All. 706 the learned Judges appear to have thought that the legislature contemplated that the certification should be made within a reasonable time, and that reasonable time is at least before the expiry of the period of three years. A prompt certification is no doubt desirable. That is a matter for the Rules Committee to consider. On the language of the rule as it stands there is nothing which debars a decree-holder from certifying payment after the ordinary three years for an application for execution have expired. My answer is that a decree-holder is not hound to certify payment before his decree is prima facie time-barred. The third question is.:

whether a statement of payment made by the decree holder in the execution application satisfies the requirements of Order 21, Rule 2, Sub-rule (1) Civil P.C., and permits him to prove that the payment was in fact made.

15. The argument of the learned Counsel for the objectors is that certification is a distinct and separate proceeding from the filing of an application for execution, and accordingly a certificate cannot be contained in the application itself. He relies strongly on the case of Gokul Chand v. Bhika [1914] 12 A.L.J. 387, the case of Bhajan Lal v. Chedu, Lal [1914] 12 A.L.J. 825, the case of Chattar Singh v. Amir Singh [1916] 38 All. 201 and the case of Baij Nath v. Panna Lal A.I.R. 1924 All. 706. No doubt his contention is fully borne out by the opinions expressed in these cases. He further argues that Order 21, Rule 11, Sub-rule (e) which requires a decree-holder to supply particulars

whether any and (if any) what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree

is quite a different thing from the certification required by Rule 2, Sub-rule (1). In my opinion the two rules are intended for quite distinct purposes. Rule 11 lays down particulars which have to be mentioned in the application for execution. Rule 2 lays down the necessity for certification and the consequences of its omission. The mere fact that certification is mentioned in one rule and particulars of payment and adjustment in another rule cannot justify the inference that the two cannot be contemporaneous or simultaneous. I think that the particulars given in an application for execution, if they amount to a certification by the decree-holder that payment or adjustment has been made, are perfectly good and comply with the requirements of Rule 2, Sub-rule (3). In the obsence of any provision laying down the law to the contrary I must hold that the certificate may be contained in the application for execution itself. Admittedly the certificate may be given just previous to the filing of the application on the same day and almost at the same time. If that is permissible there is no good ground for holding that the two cannot be contained in one and the same document, but must be evidenced by two deeds filed one after the other.

16. In the case of Peare Mohan Prasad v. Raghunath Lal : AIR1928All55 , Mukerji, J., expressed a doubt as to the view which had prevailed in this Court but felt bound to follow it. Ashworth,. J., agreed with the previous view but for a different reason His ground was that Section 20 gives a fresh period of limitation from the time of payment and Order 21, Rule 2 enacts that an uncertified payment shall not be recognized. Reading these two provisions together he thought that

an execution Court must compute limitation from the date not of payment, but of certification.

17. But when the Limitation Act does act make certification a fresh starting point, limitation cannot be computed from it. As certification will ordinarily be sometimes after payment, to calculate limitation from the date of certification would amount to extending time.

18. I am of opinion that the view which prevailed previously in this Court, that certification must of a necessity be a separate and independent proceeding is not correct. My answer to the third question is in the affirmative.

19. The fourth question is:

Whether a decree-holder may certify an alleged payment after he has made an application for execution so as to be able to prove that payment in the execution proceedings.

20. In the view which I have expressed on the third question it will ordinarily not be necessary for the decree-holder to rely upon a subsequent certificate. But cases may arise where the fact of payment was owing to a mistake or oversight, or some other cause, not mentioned in the application. In such cases the decree being prima facie barred by time, the Court will probably not direct notice to issue There seems to be nothing in the law to prevent the decree-holder from certifying payment after having filed his application for execution with a view to request the Court to recognize such payment and then order notice to issue. Nor is there any provision which prevents him from amending his application provided no question of limitation is involved. But once an objection has been taken either by an officer of the Court before the issue of notice or by the judgment-debtor when he appears to contest the application, the time has come for the Court to refuse to recognize the uncertified payment and the decree-holder cannot by certifying subsequently cure the defect. This is my answer to the fourth question.

21. The fifth and last question referred is:

Where a compromise decree directs payment of the decretal amount by instalments on particular dates and also authorizes the decree-holder, in the case of a default in payment of one or more instalments to realise the balance of the decretal amount at once, what are the 'such dates' within the meaning of Clause 7, Article 182, Schedule 1, Lim. Act, namely, the dates fixed for the payment of the instalments or the date of the default?

22. The form in which the default proviso is mentioned in this question is due to a slightly inaccurate translation of the compromise decree which had been placed before the learned Judges. It does not say that in the case of default the decree-holder shall have power or option to recover the amount, but says that the amount shall be paid by the defendants to the plaintiffs. But in the view which I take of the question, such a variation would not, in my opinion, be material.

23. The case has been argued with great ability on both sides and numerous rulings have been cited. There is undoubtedly a sharp conflict of opinion on the question whether in the case of such instalment decrees the first default makes time begin to ran in respect of all subsequent instalments so as to compel the decree-holder to apply for execution within three years of the first default on penalty of losing his rights or whether he has a recurring right on each of the successive defaults. In my opinion much confusion has been caused because of relying on considerations which are outside Article 182, Clause (7). In some cases Judges have differed as to whether waiver by the decree-holder would save time or not. Opinions have been expressed both for and against the view that the principle of successive defaults embodied in Article 75 should be applied in this case also. Sometimes the decision has depended on whether it was compulsory for the decree-holder to apply for execution on the happening of the first default, or whether he had the option to ignore it and wait for the next default. Then Judges have differed as to how far mere abstinence on the part of the decree-holder from taking out execution for the whole amount due on a default is waiver. An elaborate discussion of this point is to be found in the case of Shankar Prasad v. Jalpa Prasad [1894] 16 All. 371. Throughout the judgment there is no mention of the article which was applicable but possibly the learned Judges were assuming that Article 179 of the old Act, corresponding to Article 182 of the present Act, was applicable but they have omitted to say so. The extent to which considerations of the compulsory or optional character of the default clause can lead one to is illustrated by two cases which were differently decided by Benches, in both of which Richards, C.J., was a member. In the case of Chattar Singh v. Amir Singh [1916] 38 All. 201 the proviso was:

If default was made in the payment of instalments, the full amount should become due.

24. It was held that the decree directed that the full amount should be paid on default. In the case of Lachmi Narain v. Sarju Prasad [1917] 39 All. 230, the clause was to the effect that upon failure to pay any one instalment, the decree-holder would have the power to realize the whole decretal amount without waiting for any future instalments. It was held that the decree-holder, not being bound to execute his decree for the whole amount, the decree cannot be said to have directed the payment on default.

25. In my opinion, before considering the question whether a particular suit or application is barred by time, it is essential to settle at the very outset which particular article of the Limitation Act applies to the case, and then to examine the language of that article only. It is dangerous to assume that there is any general principle underlying the whole of the Limitation Act governing cases of default Each article has its own phraseology for fixing the time from which limitation begins to run, and we have only to determine the date, which on the language of the relevant article, Is fixed. For instance, Article 75 talks of default being made and of the waiver of the default by the payee. Article 132 uses the expression 'when the money becomes due.' Art 181 says 'when the right to apply accrues.' Article 182, Sub-clause (7) has the expression 'the certain date on which the decree directs payment.' Now all these expressions are different and do not necessarily mean the same thing.

26. The very first thing to decide is which article applies. Now Article 181 is the general article for applications, but it only applies to applications for which no period of limitation is provided elsewhere. If an application is specifically provided for Article 181 is out of the question.

27. In this connexion I might refer to the case decided by their Lordships of the Privy Council-Maung Sin v. Ma Tok to which the present case has some resemblance. There too the decree provided that the husband would pay Rs. 2,000 annually to the wife and remain in possession of the disputed property but in case of default of payment, the property would be made over to the wife. So far as the application to recover the instalments due was concerned, the case was clearly governed by Article 182, Sub-clause (7), and their Lordships held that article applied. Then dealing with the wife's right to recover the property on account of the default, their Lordships held that upon the construction of the decree itself, on the occasion of a default in each payment, the right of the respondent to have the said property made over to her arose, and, therefore, the claim was not time barred, because it was made more than three years after the first default. Their Lordships have not mentioned the particular article which applied to that application. Article 182, Clause (1) could not possibly have applied, as the default might occur long after the expiry of three years from the decree. Unless their Lordships considered that the expression 'enforce any payment' was wide enough to cover the claim to recover possession of the property, Article 182, Clause (7) could not have applied. I venture to think that as Article 182 was not in express terms applicable, their Lordships had in mind the provisions of Article 181, under which, having regard to the construction of the decree, the right to apply accrued each time that a default was made. I might mention that in a similar case where the default entitled the decree-holder to recover possession of immovable property, this Court, in the case of Muhammad Islam v. Muhammad Ahsan [1894] 16 All. 237 held that the general article, Article 173 of the old Act, applied and not the article for execution applications. If therefore the present case is governed by Article 182, the principle underlying the decision of their Lordships of the Privy Council would not govern it.

28. I fail to see how the decree-holder's application for recovery of the instalments after the dates fixed for their payment have expired can be taken out of Article 182. It is an application for execution of a decree not provided for by Article 183, or Section 48, Civil P.C., and therefore comes expressly within the language employed in Col. 1 of Article 182. The application is to recover the instalments which fell due in June 1924 and 1925, and was made after these dates had passed, and within three years of those dates. The decree had expressly directed the payment of these instalments on specified dates, 16th June 1924 and 16th June 1925. Prima facie therefore the application is governed by Art 182, Clause (7), and the decree-holder has three years from each of the two dates fixed.

29. The learned advocate for the judgment-debtor relies on the proviso which stated:

that if default in the payment of two instalments is made, the whole amount shall be paid by the defendants.

and contends that the whole amount became payable on the 17th June 1921, by which time two consecutive defaults had taken place. For the purpose of deciding this point it is of course assumed that the decree-holder is precluded from proving that any payments were made in 1921 or 1923. The argument is that the date of this future default was the date fixed by the decree for the payment of the whole decretal amount. The answer to the question before us will depend on the meaning of the expression 'certain date' in the clause. I think that in the previous cases of this High Court referred to by me, attention was not directed to the significance of this expression. The corresponding clause in the Act of 1871 contained the expression 'specified date'. That necessarily connoted the idea that the exact date should be mentioned in the decree. The substitution of the word 'certain' in place of 'specified' widens the scope of its meaning. It is no longer necessary to mention by the year, month and day the exact date in the decree. All the same the date fixed for payment must be a certain date. In my opinion the word 'certain' is used in contradistinction to 'uncertain.' It is not used in the sense in which one might say that a certain man came to see me. It obviously means a date, which though not expressly mentioned or ascertained, must yet be a date which must certainly occur. The word 'certain,' in my opinion, is a contrast of the word 'uncertain' as that word is used, for instance, in Sections 32 and 33, Contract Act, or Sections 21 and 23, T.P. Act.

30. In the present case, at the time when the decree was passed, it could not be known definitely and it was not at all certain whether two consecutive defaults would be made by 1921. If the judgment-debtors went on paying the instalments regularly, there would never be any default. It is therefore impossible, in my opinion, to say that the decree had fixed a 'certain' date for the payment of the whole amount in a lump sum. Such a date was not at all certain. It was dependent on the contingency of two consecutive defaults happening. The date might or might not come at all. No doubt it is now known that the defaults were made and a date arrived when the default clause could be enforced, but this was not certain when the decree was passed.

31. I am therefore clearly of opinion that in such instalment decrees, where the whole amount becomes due only if default is made and not due if no default is made, the date of default, which does later on occur by chance, is not a date certain on which payment is directed by the decree. In this view time did not begin to run under Article 182 for the recovery of all the subsequent instalments from the date of the first default, but under Clause (7) a separate period of three years is prescribed to run from the respective date on which each instalment fell due.

32. In such circumstances the application for the recovery of the amounts of instalments which fell due more than three years prior to the application would, unless it was saved by Sections 19 or 20, be barred by time; but the application would still be within time as regards those instalments which fell due within three years, in spite of a default clause.

33. As the dates fixed for all the instalments had expired before the application for execution was made, there was no necessity for the decree-holder to enforce the default clause. His application is substantially one for recovery of the total amount of the instalments fallen due together with interest.

34. The case where a decree-holder applies to recover the whole amount by enforcement of the default clause before the dates fixed for the subsequent instalments have arrived would be quite different. Such an application would not fall under Article 182 (7), nor, as is obvious, under Clause (1), and would therefore be governed by the general Article 18. This is my answer to the last question.

Mukerji, J.

35. This is a reference to a Full Bench for its opinion on five points which have been formulated as below:

1. Whether there is any period of limitation applicable to a decree-holder certifying a payment under Order 21, Rule 2, Sub-rule 1, Civil P.C.?

2. If not, must a decree-holder certify payment before a decree will be time barred if the payment sought to be certified by the decree-holder be ignored?

3. Whether a statement of payment made by the decree-holder in the execution application satisfies the requirements of Order 21, Rule 2, Sub-rule 1, Civil P. C, and permits him to prove that the payment was, in fact, made

4. Whether a decree-holder may certify an alleged payment after he has made an application for execution, so as to be able to prove that payment in the execution proceedings?

5. Where a compromise decree directs payment of the decretal amount by instalments on particular dates and also authorizes the decree-holder, in the case of a default in payment of one or more instalments, to realize the balance of the decretal amount at once, what are the 'such dates' within the meaning of Clause 7, Article 182, Schedule 1, Lim. Act, namely, the dates fixed for the payment of the instalments or the date of the default?

36. The questions have arisen under circumstances which have been detailed in the judgment of the learned Acting Chief Justice and I need not mention them again. My views on the first four questions are contained in my judgment in the case of Peare Mohan Prasad v. Raghunath Lal : AIR1928All55 . I would therefore indicate them again very shortly.

37. On the first question, whether there is any period of limitation applicable to the decree-holder certifying a payment under Order 21, Rule 2, Sub-rule 1, Civil P. C, there can be but one answer, namely, that in the negative. The simple reason is that the law of limitation (Act 9 of 1908).does not at all provide for any such period. A certificate of payment given by the decree-holder to the Court is a mere intimation to it that he has received a certain sum of money from the judgment-debtor or that the decree has been wholly or partially satisfied in a particular way. That being the nature of a certificate, it is not an 'application' and Art 181, Lim. Act will not apply to it. The decree-holder has not to make a prayer to the Court, to which he certifies the alleged payment or adjustment, that the same should be recorded. His duty is finished as soon as he has given the intimation to the Court. After an intimation has been given, it would be the duty of the Court to make a record of the fact that an adjustment or payment has been made. My answer therefore to this question is in the negative.

38. On point No. 2 my answer is again in the negative. If there is no rule of limitation, the decree-holder must be in a position to be able to certify payment even after the decree should appear, on ignoring the payment certified, as time barred. My answer is accordingly.

39. Point No. 3.-On this point it should follow from my answer on the foregoing two points that the certifications may be one minute before the filing of the application for execution and it may be made simultaneously with the filing of the application. If this be so, there should be no difficulty in accepting the statement of the decree-holder, contained in the execution application under Clause (e), Rule 11, Order 21, Civil P. C, that a certain payment or adjustment has been made, as a certificate required by Rule 2 of the same order. The argument, that if a statement contained in an application for execution was to be taken as good enough for the purpose of certification, there would be no need for enacting Rule 2 of Order 21, has, in my opinion, no force. The need for certification under Order 2, Rule 2 would still be there, even if no occasion should rise for making an application for execution. My answer, therefore, is as indicated above.

40. Point No. 4.-This question has been framed in view of the fact that although the execution application, in the case out of which this reference has arisen, contained the payments alleged by the decree-holder, he filed a certificate after the judgment-debtor raised the plea of limitation. The object of that certificate was So remove any formal obstacle that might be in the way of the decree-holder proving the alleged payments, if the statement contained in the application itself be treated as an insufficient certificate. The question therefore is:

If there-be no previous certificate contained in the execution application, can a decree-holder, after the judgment-debtor has raised the objection of limitation, file a certificate so as to enable the decree-holder to prove a payment, which, if proved, would save the application from the bar of limitation.

41. This question was answered by me in the negative in Peare Mohan's case : AIR1928All55 and I see no reason to alter the opinion then entertained by me. While it can never be doubted that the decree-holder can always tell the Court that he has received a certain amount of money from the judgment-debtor or that his decree has been otherwise partially satisfied by the judgment-debtor, with the result that the decree will not be executed to the extent it has been satisfied, it should not be open to a decree-holder, when a controversy of limitation has been raised, to come forward with a statement that, on account of a certain payment or adjustment his application for execution should be treated as within time. This result must follow from Sub-rule 3, Rule 2, Order 21, Civil P.C. That sub-rule says:

A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

42. This means that before a payment or adjustment can be recognized by the executing Court, there should be already in existence a certificate of payment or adjustment or a record of the payment or adjustment. After the time for recognizance came, it would be too late for the decree-holder to make a certification. My answer to the fourth question therefore is that the certificate should always come before the controversy as to limitation has arisen, either on account of the judgment-debtor appearing and objecting to the decree as being time barred, or on account of a subordinate officer, officially reporting to the Court, that the decree is time barred.

43. The question No. 5 would have been slightly differently framed, if the Bench making the reference had a correct translation of the decree before it. The question, as framed, assumes, as a part of the terms of the decree, that the decree-holder has the option either to enforce payment of the entire decretal amount or not to do so, in the case of the default in the payment of one or more instalments. As a matter of fact, the decree in this present case, if correctly interpreted, would mean that the judgment-debtor bound himself to pay the whole of the decretal amount in case any two instalments remained unpaid on the due dates. The point of law, however, that is involved is not affected by this altered circumstance.

44. Article 182, Schedule 1, Lim. Act, is the article which applies to execution of decrees. Clause 7 of this article which relates to instalments payable under a decree is as follows:

7. (Where the application is to enforce any payment which the decree or order directs to be made at certain date) such date.

45. The meaning seems to be plain to me. It means that where the decree or order under execution says that a certain sum of money is to be paid on a particular date (it does not matter whether the date is expressly mentioned or is mentioned by necessary implication) the decree-holder will have three or six years time, as the case may be under Col. 2 of the article from the date so mentioned in the decree, for realizing that amount. Where a decree or order directs that in case of a certain amount being not paid on a particular date, the whole of the amount then payable shall at once be realizable, it cannot be said that the whole of the amount so payable is 'a payment which the decree or order directs to be made at a certain date.' The date that is mentioned in the decree or order is the date for the payment of a particular (instalment). Although the non-payment makes the whole balance at once realizable, there is no direction in the decree or order as to the date when the whole of the balance is to be paid. In the case of any ordinary decree, directing payment of money, although the whole of the amount is payable as soon as the decree is passed, it cannot be said that the decree directs that the payment should be made on a particular date. If this be so, no 'certain' date having been fixed for the payment of the entire decretal amount, it cannot be said that Clause (7), Article 182 compels the decree-holder to apply for the recovery of the balance of the decretal amount on the first or subsequent dates given in the decree for payment of an instalment The argument that, on default being made on 16th June (1921), the whole of the decretal amount became, payable on 17th June and that, therefore, the decree should have been executed within three years of 17th June, is entirely fallacious. It overlooks the fact that the date, 17th June, is neither specified in the decree nor is it a date which is mentioned, by necessary implication, as having been fixed by the decree for payment. The result, therefore, is that the decree is executable without any bar of limitation in respect of a particular instalment, within three years of the date on which the instalment falls due, irrespective of the provision making the whole of the balance payable on default.

46. The provision in the decree, which makes the whole of the decretal amount payable, in case of one or more defaults, is only an ancillary clause and can have no independent existence. It is, therefore, not right to say that, there being no clause in Article 182 which would directly apply, Article181 should apply to it. If this argument were correct, we would arrive at this anomalous position that, in the case, on which the reference is based, the whole decretal amount fell due on 17th June 1921, and became barred on 17th June 1924, by the application of Article 181, while by the application of Article 182, Clause 7, the instalments of 1924, 1925 and 1926 may still be recovered. Then Article 181 being a residuary article, should not be applied to the execution of a decree for which a special rule has been provided.

47. My answer, therefore, to this question is that the clause which makes the balance of the decretal amount at once payable does not make the whole of the amount payable on the dates fixed in the decree for payment of particular items or on the dates following such dates. The decree-holder may seek to realize either the instalments which have fallen due within three years of the dates fixed in the decree, for payment of an instalment, or the entire decretal amount then due and not already barred by time, where the decree makes the same payable on default.

Boys, J.

48. On the first three question I am in entire accord with the Acting Chief Justice and Mukerji, J., as to the answers to be given.

49. As to the first, I agree that there is no period of limitation applicable to a decree-holder certifying a payment, under Order 21, Rule 2, Sub-rule (1), Civil P.C.

50. As to the second question, I agree that the payment need not be certified before the decree would be time-barred if the payment sought to be certified by the decree holder had to be ignored.

51. As to the third question, I agree that a statement of payment made by the decree-holder in the execution application satisfies the requirements of Order 21, Rule 2, Sub-rule (1), Civil P. C, and permits him to prove that the payment was in fact made; and I would add that it is quite immaterial for this purpose in which column or in which part of the application the statement is made, provided that it amounts to a clear statement of the receipt of payment.

52. As to the fourth question, there is nothing to prevent a decree-holder stating subsequently to his application for execution that he received a certain sum prior to the application.

53. If such a statement was made before controversy of any sort as to limitation arose either by a Court officer reporting the application to be barred by limitation or by objection by the judgment debtor or otherwise, such statement may be treated as in effect an amendment of the application for execution and in view of my answer to the third question amounts to a certificate.

54. But if such statement is made after controversy arose, while there is no reason why the Court should refuse to allow the statement to be filed for any other purpose than that of constituting a certificate, e.g., to place on record evidence suggesting that the omission in the application for execution was a bona fide mistake, it cannot have the force of a certificate.

55. As to the fifth question:

56. The question as put to us reads:

(5) Where a compromise decree directs payment of the decretal amount by instalments on particular dates and also authorizes the decree-holder in the case of a default in payment of one or more instalments to realize the balance of the decretal amount at once, what are the 'such dates' within the meaning of Clause (7),. Article 182, Schedule 1, Lim. Act, namely, the dates fixed for the payment of the instalments or the date of the default?

57. But this was due to a mistranslation of the decree. The question should read:

(5) Where a compromise decree.

(a) directs payment by instalments on named dates, and

(b) further directs the judgment-debtor to pay the entire balance due if he makes default as to any two successive instalments.

58. where are the 'such dates' within the meaning of Article 182 (7), the dates fixed for the payment of the instalments or the date of the default?

59. The decree was for a total sum of Rs. 13,512-14-6. The decree-holder alleged payment of Rs. 11,000 (Rs. 6,000 on 12th July 1918, Rs. 1,000 on 1st July 1919, Rs. 2,000 on 12th June 1921, and Rs. 2,000 on 14th June 1923), and on that basis Rs 2,512-14-6 was due at the date of the application for execution. The decree-holder applied to execute for the whole balance.

60. But payment of the last two sums of Rs, 2,000 each was denied by the judgment-debtor, and we have to answer this question on the assumption that the instalments being payable on each 16th June, the judgment debtor had on 16th June 1921 made default as to two successive instalments and a balance of Rupees 6,512-14-6 remained.

61. What remedy or remedies had the decree-holder open to him on 16th June 1921, and what is the law of limitation applicable to such remedy or remedies.

62. The first step is to examine the decree.

63. The decree gave two directions:

(1) That the, judgment-debtor was to pay annual instalments on a certain specified date each year.

(2) That if he made default in respect of 'any two successive instalments' the judgment-debtor was to pay up the whole balance.

64. The amount of claim in the application for execution of the decree is stated as follows:

Amount of claim Rs. 12,902-6-6 costs 610-8-0. A decree for a total sum of Rs. 13,512-14-6 was passed in terms of the mutual compromise, the amount being payable in annual instalments of Rs. 1,000; in the event of default in payment of two instalments, the remaining decretal amount was made payable in a lump sum with interest at 6 per cent, per annum, by the defendants; that the remaining decretal amount is Rs. 2,512-14-6, and interest from 16th June 1918 to 15th September 1925, Rs. 1,070. Total Rs. 3,582-14-6.

65. This may seem on the face of it an application or claim under the second part of the decree; it does quote the 'default' condition upon which occurring 'the remaining decretal amount' becomes payable and it then states the total of 'the decretal amount' which is claimed.

66. It is, of course, true that it so happens that at the time of the application the dates for all the instalments payable had passed and so whether the application was 'for specified unpaid instalments' already due or for 'the remaining decretal amounts,' the amount claimed in this case would be the same.

67. But it is so clearly on the face of it an application under the second part of the decree that I should have difficulty in treating it as one under the first part, if I had to decide the point.

68. The question, however, has not been referred to us to decide under which part of the decree the application is made, so I am content to leave that to the Bench that referred the case to the Full Bench and that will decide the case, and I will give my answer on either hypothesis.

69. If the application be interpreted as an application under the first part of the decree for instalments due I can see no reason for holding that the fact that the judgment-debtor had made two successive defaults and incurred the more severe penalty provided by the second part of the decree deprived the decree-holder of the right to enforce the first part of the decree and executed it at any time in respect of any instalments or instalments his right to which was not barred by limitation. Art 182 (7) is here beyond question applicable, for in the case of the direction for annual instalments the dates for payment are beyond doubt specified and 'certain.' The right under the second part of the decree is an additional right and not a restriction on his first right. In the present case the decree-holder could therefore have executed for the instalment of 1923 (for we have assumed that instalment must for the purpose of our answer be treated as unpaid), 1924 and 1925.

70. But if the application be interpreted as an application under the second part of the decree, the case will be different.

71. On the assumption (on which we are proceeding) that the alleged payment of Rs. 2,000 on 12th June 1921, was not made, there was undoubtedly a default in two successive payments, a default which gave the decree-holder a right to execute on 17th June 1921, for the whole balance.

72. Next, before we consider whether the decree-holder got by subsequent default any fresh starting-point for limitation of his right to execute for the balance, it must be determined what article of the Limitation Act applied to the right to execute for the balance which accrued to him on 17th June 1921.

73. It is, in my opinion, quite clear that Article 182 (7) cannot apply. It could only be held to apply by holding the words 'certain date' to mean

a date certain (i.e., either apparent or determinable on the face of the decree) or a date which on the happening of a particular event, which might never have happened at all, becomes certain.

74. I can see no justification whatever in the language of Article 182 (7) for importing the second alternative into it. The words 'the decree directs to be made at a certain date' seem to me open only to the construction that the date must be specified in, or with certainty ascertain-able from, the decree itself. Therefore, though the application is one of the class described in the first column of Article 182, it is impossible to hold that Article 182 applies to it because none of the seven provisions in the third column is applicable to it.

75. It of course follows that, whether or not any two later successive default could be relied upon, by waiving or ignoring a prior default or defaults, the date of the second of such successive defaults would be equally not 'certain' within the meaning of Article 182(7), and the question of the right of the decree-holder to waive or ignore a default does not here arise.

76. I would answer, then, that while Article 182 (7) would apply to an application to execute in respect of and for particular instalments due on dates certain from the decree itself, it does not apply at all to the present application for execution which is under the second part of the decree.

77. The only other article is Article 181. By the second part of the decree the judgment-debtor is made liable to pay and a corresponding right in the decree-holder to apply clearly first arose on 17th June 1921, and, in the absence of any other considerations, the application would have become barred on 17th June 1924.

78. But there is another consideration, to which I have referred (but which it was not in that connexion necessary to pursue) when considering the applicability of Article 182 (7) to the second part of the decree

79. That consideration arises upon a construction of the particular decree.

80. The second part of the decree makes the liability of the judgment-debtor arise upon default in payment of 'any two successive instalments.' There is nothing whatever in this phrase to limit it to the 'first two successive defaults,' and such a restriction would moreover be ordinarily to the prejudice of the judgment-debtor by forcing the decree-holder to take action. This last is only a question of expediency, but apart altogether from such expediency I can see no justification for forcing such a construction upon the words 'any two.'

81. I hold, therefore, that the execution of the second portion of the decree is governed by Article 181 and the right to apply first arose on 17th June 1921, and again on the occurrence of each default (in respect of that and the previous default). Therefore, in this case the decree-holder could apply on 17th June 1925, (by reason of the defaults on 16th June 1924 and 16th June 1925) for execution for the balance due (i.e. for the whole decretal amount less amounts paid and less individual instalments already barred by limitation).

82. I would, therefore, answer the fifth question as follows:

83. If the particular application for execution be interpreted as an application under the first part of the decree to recover certain instalments already overdue, Article 182 (7) applies and limitation will run in respect of each instalment from the date on which it became payable.

84. If the particular application for execution be interpreted as application under the second part of the decree to recover 'the balance of the decretal amount remaining unpaid,' Art 181 applies and limitation will run as to the whole balance unpaid, from the date of the later of the last two successive instalments unpaid, the decree-holder being entitled to a decree for the whole balance if his application is within three years of that date less the amount of any individual instalments, which regarded as individual instalments, are not already barred by limitation.

Q. (1) Whether there is any period of limitation applicable to a decree-holder certifying a payment under Order 21, Rule 2, Sub-rule (1), Civil P.C.

A. There is no such period,

Q, (2) If not, must a decree-holder certify payment before a decree will be time barred, if the payment sought to be certified by the decree-holder be ignored?

A. No.

Q. (3) Whether a statement of payment made by the decree-holder in the execution application satisfies the requirements of Order 21, Rule 2, Sub-rule 1, Civil P. C, and permits him to prove that the payment was in fact made?

A. Yes.

Q. (4) Whether a decree-holder may certify an alleged payment after he has made an application for execution so as to be able to prove that payment in the execution proceedings?

85. A. If the statement purporting to certify the alleged payment, though made after the application for execution has been made, is made before any controversy arises, either by a Court officer reporting the application to be barred by limitation or by objection by the judgment-debtor or otherwise, such statement has the effect of a certificate.

86. But if such statement is made after controversy arose, while there is no reason why the Court should refuse to allow the statement to be filed for any other purpose than that of constituting a certificate, e.g., to place on record evidence suggesting that the omission in the application for execution was a bona fide mistake, it cannot have the force of a certificate.

Q. (5) (as re-drafted by the Full Bench) Where a compromise decree

(a) directs payment by instalments on named dates, and

(b) further directs the judgment-debtor to pay the entire balance due if he makes default as to any two successive instalments

what are the such dates' within the meaning of Article 182 (7) the date fixed for the payment of the instalments or the date of the default?

Mukerji, J.,

88. A (dissenting) (a)-If the application is one for the payment of instalments under the first part of the decree it will be governed by Article 182 (7) and the date from which limitation will run as regards each instalment will be the date on which that instalment was due.

(b) If the application is one for the remaining unpaid balance of the decretal amount under the second part of the decree, it is not governed by Article 182 at all but by Article 181 and limitation will run from the date of the last of any two successive defaults, the decree-holder being entitled to a decree for the whole balance due less the amount of any individual instalments which, regarded as individual instalments, are not already barred by limitation.

(c) In cases of this description it is undesirable to interpret the application too strictly; the Court may well pay regard to the substance of the application.


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