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Amir Singh Vs. Chhattar Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All311; 29Ind.Cas.274
AppellantAmir Singh
RespondentChhattar Singh and anr.
Excerpt:
execution - uncertified payment under decree, recognization of--instalment decree--default--limitation act (ix of 1908), schedule i, article 182 (7). - - 62 each were to be paid at the end of agfiai and at the end of jeth till the whole decree wns satisfied......end of aghan sambat 1968, and they, therefore, claimed the whole amount remaining1 due under the decree. payment of the first 4 instalments was not certified to the court or recorded by the court and, therefore, cannot be recognized by any court executing the decree. the learned vakil for the decree holders relies upon a decision of this court based upon section 258 of the civil procedure code of 1882, but the words relied upon by this court as justifying the view that, a court might recognize an uncertified payment for some purposes, have now disappeared from the code with the result that an uncertified payment cannot be recognized for any purpose, certainly not for the purpose of saving limitation. the decree in question provides in plain terms that if there is default in payment of.....
Judgment:

Chamier, J.

1. This appeal arises ont of an application made on November 12th, 1913, for execution of a decree dated May the 10th, 1909. The decree was for a considerable sum of money to be paid in certain instalments. The first instalment amounting to Rs. 124 was to be paid at the end of Aghan Sambaf, 1966 corresponding with December the 26th, 1909. The second instalment amounting to Rs. 62 was to be paid at the end of Jeth Sambat 1967. Subsequent instalments of Rs. 62 each were to be paid at the end of Agfiai and at the end of Jeth till the whole decree wns satisfied. In case of default the whole amount became payable at once. The decree-holders in their application of November 12th, 1913 stated that they had received the first four instalments, but that there had been a default in payment of the instalment due at the end of Aghan Sambat 1968, and they, therefore, claimed the whole amount remaining1 due under the decree. Payment of the first 4 instalments was not certified to the Court or recorded by the Court and, therefore, cannot be recognized by any Court executing the decree. The learned Vakil for the decree holders relies upon a decision of this Court based upon Section 258 of the Civil Procedure Code of 1882, but the words relied upon by this Court as justifying the view that, a Court might recognize an uncertified payment for some purposes, have now disappeared from the Code with the result that an uncertified payment cannot be recognized for any purpose, certainly not for the purpose of saving limitation. The decree in question provides in plain terms that if there is default in payment of any instalment, the whole amount of the decree shall become payable. It has been held in a large number of cases that Clause (7) in the 3rd column of Article 182 of Schedule I to the Limitation Act applies to such a provision as this. The only point on which there is any room for doubt is whether the decree directed payment to be mode on a certain date. The decree directs that instalments are to be paid on or before the last day of Aglian and Jeth, and that if there is default, the whole amount shall become payable at onre This appears to me to bring the case within Clause (7), and I hold that the application for execution should have been made within three years of the 1st default. The decree holder being unable to prove that any instalments have been paid, I must take it that the first default occurred at the end of Aghan Sambat 1966. Therefore, the present application for execution, made more than three years after that time, is barred by limitation and should have been dismissed I was referred to a judgment of the Bombay High Court in a case in which the effect of subsequent payment and acceptance of overdue instalments was discussed. It appears to have no bearing on the present case, as it is not suggested that there was acceptance of in overdue instalment or anything in the shape of waiver which would affect the period prescribed by the Limitation Act. I allow this appeal set aside the order of the Court below and dismiss the respondents' application for execution with costs throughout. Costs in this Court will include fees on the higher scale.


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