1. This is an execution second appeal by a judgment-debtor under the following circumstances:
There was a compromise decree for instalments passed on 11th May 1928, between the parties by which it was agreed that the total amount due was Rs. 1,100, that Rs. 300 would be paid within a month of the compromise decree and that the balance of Rs. 800 was to be paid by instalments of Rs. 25 on 1st November and 1st May, the first instalment being payable on 1st November 1928. The compromise further provided that in case of failure to pay two instalments, all the money will be paid at once and in case the Rs. 300 is not paid all the money will be paid at once with 1 per cent, interest per mensem. It will be noted that it was not provided that all the money is to be paid at once in case the Rs. 300 is not paid within a month; that is, the words 'within a month' are not repeated but I interpret the decree to mean that the default would arise if the Rs. 300 were not paid in a month. The first matter which took place in the execution Court was an application of 18th February 1932, by the decree-holder under Order 21, Rule 2 certifying that he had received payment of the Rs. 300 in June 1928 and of Rs. 50 on 28th April 1929 in respect of the two instalments of November 1928 and May 1929, and that he had received Rs. 50 on 29th April 1930, in respect of the two instalments of November 1929 and May 1930. The Court of first instance took evidence on the point and it has been held by the Court below that the account books of the decree-holder's munim proved that the Rs. 300 was paid in four items from 25th May, to 12th July 1928. Accordingly the decree-holder was inaccurate in stating in his certificate that the Rs. 300 were paid in June 1928. That sum should have been paid by the 11th June 1928. The finding of fact is that it was not so paid but only part had been paid by that date. There was therefore a default in the payment of the Rs. 300, the default arising on 11th June 1928. The decree-holder therefore had a right on that date to apply for execution of the whole decree for Rupees 800 plus the balance of the Rs. 300 not paid. It was not until 5th September 1932, that the decree-holder made the present application for execution of the whole decree on account of the default in payment of the two later instalments, i.e., the instalment of 1st November 1928, and 1st November 1929. The question arises whether the present application is time-barred wholly or in part. The Courts below have held that Section 20, Limitation Act, will not apply, and the Court of first instance states that the requirements of that section have not been complied with. The Court did not correctly state the requirements as it said the section required that the payments should appear in the hand-writing of the judgment-debtor and be signed by him. The word used in the Act is 'or' and not 'and.' The payments were in the books of the decree-holder written by his munim and the certified copies produced in Court do not show any signature of the judgment-debtor. It was not contended for the decree-holder that the requirements of Section 20 were satisfied. Learned Counsel for the decree-holder relied on a ruling in Buddhu Lal v. Rekkhab Das (1889) 11 All. 482, which he claimed established the right of the decree-holder to waive payment which was made after a certain time. That ruling does not deal with limitation. It dealt with a decree which provided for instalments and stated that in case of default the decree-holder might execute the decree for the whole of the balance due. The language used in the present decree is different as it does not give an option to the decree-holder but states that in case of default the balance due will be paid. This language is imperative and renders the balance to be due for payment under the decree in case of default. In any case in the ruling in question a Bench of this Court held that the decree-holder should not he allowed to execute the entire decree for the default to pay an instalment because it held that he had waived his right. If that ruling were to be applied to the present case, I would have to hold that the decree-holder had also waived his right by not applying within limitation to execute his decree for the default. The lower Court has held that under Article 181, Limitation Act, the right to execute the decree accrued to the decree-holder when the next two instalments up to 1st November 1930, were unpaid, and that the execution application was filed within three years of that date and was therefore in time. I am not able to follow the reasoning of the lower Court. The lower Court arrives at a conclusion by omitting to notice the default which occurred on 11th June 1928, which was more than three years before the application for execution of 5th September 1932. Learned Counsel also desired to refer to rulings in regard to waiver of the Bombay and Calcutta High Courts. It may be that under those rulings some right arising from the doctrine of waiver would accrue to save limitation, but learned Counsel failed to show that any such doctrine had been adopted in regard to limitation by this Court, and I prefer to follow the rulings of this Court. Learned Counsel for the appellant referred to two rulings. One of these is reported in Jaikaran v. Panchaiti Akhara : AIR1933All49 in which the learned Chief Justice of this Court held that a certificate of payment out of Court would not extend limitation as it was not a step in aid of execution within the meaning of Article 182, Limitation Act, and further that a payment by a judgment-debtor out of Court was not a step in aid of execution and would not extend limitation. The two payments therefore of 29th April 1930 and 28th April 1929, which have been proved to have been made out of Court will not serve as steps in aid of execution to extend limitation. Learned Counsel further referred to Ram Prasad Ram v. Jadunandn Upadhia : AIR1934All534 where there was a case somewhat similar to the present before a Bench of this Court. That was a compromise decree for instalments with a clause that the decree-holder would be entitled to realise the total amount in case of default. It was held that the decree-holder had two distinct rights under this decree : (1) to receive instalments as and when they fell due, and (2) to enforce the payment of all the instalments that might remain unpaid in the event of two successive instalments remaining unpaid. That this right had become time-barred as the application o execute that right had first accrued beyond the period of three years from the date of the application, but that the bar of the second right did not necessarily bar the first right and that the decree-holder could recover such instalments as had-fallen due by the date of the application for execution under Article 182(7), Limitation Act. I consider that I should follow this ruling in the present case and accordingly I allow the second appeal to this extent that I hold that the right of the decree-holder to apply for execution of the decree for the whole of the remaining sum due to him is time-barred. I hold however that of the decretal amount, he has a right to apply for execution of the instalments of Rs. 25 each, due on the 1st clay of November 1930, May 1931, November 1931, and May 1932, that is, a total of Rs. 100 with the appropriate interest on the different instalments. It is open to the decree-holder to apply for execution in regard to the instalments which have fallen due since the date of this application, i.e., of 1st November 1932, and subsequent dates upto whatever time he makes his application provided the dates of those instalments are withintime from the date of the new application. Proportionate costs are allowed in this Court and in the Courts below.
2. No ground has been shown for a Letters Patent appeal, so permission is refused.