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Lachmi NaraIn Vs. Sarju Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All230
AppellantLachmi Narain
RespondentSarju Prasad and ors.
Cases ReferredShankar Prasad v. Jalpa Prasad
Excerpt:
act no. ix of 1908 (indian limitation act), schedule i, article 182(7) - execution of decree--decree payable by instalments--whole decree executable on failure to pay any one instalment--limitation. - - 300. it is quite clear that, but for the proviso as to what should happen on default, the dates 'directed' by the decree were the 4th of june, 1910, and the 4th of june, 1911. if these be the right dates, the application was well within time. that, like the present, was a case of a decree payable by instalments where there had been a default. 204 is clearly distinguishable from the present case on this ground......the whole decretal money when default was made, the date of default must be taken as being the date 'directed' by the decree. this seems hardly correct. it is quite clear that on the face of the decree itself, the decree-holder was not bound to execute his decree for the full amount when default was made. no doubt he had power to do so if he so pleased. if the decree had in so many words 'directed' that when default was made it might be executed either upon the date of default or upon the dates when the subsequent instalments become due, we think it could hardly be contended that the decree did not 'direct' the payment to be made just as much on the later dates as on the earlier. the full bench case of gaya din v. jhumman lal (1915) i.l.r. 37 all. 400, has been referred to by the.....
Judgment:

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

1. This appeal arises out of an application for execution. The decree-holder has obtained a personal decree under Section 90 of the Transfer of Property Act, based on a compromise. The decree was that a lump sum of Rs. 1,225 should be paid in three annual instalments : Rs. 625 on the 4th of June, 1909, Rs. 300 on the 4th of June, 1910, and Rs. 300 on the 4th of June, 1911. The decree contained a provision that if default was made in the payment of any instalment, the decree-bolder should have 'discretion' or 'power' to realize the full amount of the decree with interest without waiting for any future instalment to become clue. On the 8th of April, 1913, the decree-holder asked for execution of his decree for the instalments that fell due on the 4th of June, 1910, and the 4th of June, 1911, respectively, together with interest. In his application he set forth that he had already received Rs. 520 upon foot of the earlier instalment but he made no claim in respect of the balance due on foot of that instalment. An objection was made by the judgement-debtors that the application was time-barred. The court of first instance overruled the objection and its decision was confirmed by the lower appellate court. A learned Judge of this Court, however, set aside the orders of the courts below and allowed the objection.

2. It is admitted on both sides that the article applicable is Article 182 (clause 7) of schedule I of the Limitation Act. This article states a period of three years for the execution of a decree and it provides for the date from which time shall run in the following terms: 'Where the application is to enforce any pay-mast which the decree or order directs to be made at a certain date, such date.' It thus appears that what we have to consider in the present appeal is at what date did the decree ''direct' the payment of the two sums of Rs. 300 and Rs. 300. It is quite clear that, but for the proviso as to what should happen on default, the dates 'directed' by the decree were the 4th of June, 1910, and the 4th of June, 1911. If these be the right dates, the application was well within time. But it is said that because the decree-holder had the 'discretion' or 'power' to realize the whole decretal money when default was made, the date of default must be taken as being the date 'directed' by the decree. This seems hardly correct. It is quite clear that on the face of the decree itself, the decree-holder was not bound to execute his decree for the full amount when default was made. No doubt he had power to do so if he so pleased. If the decree had in so many words 'directed' that when default was made it might be executed either upon the date of default or upon the dates when the subsequent instalments become due, we think it could hardly be contended that the decree did not 'direct' the payment to be made just as much on the later dates as on the earlier. The Full Bench case of Gaya Din v. Jhumman Lal (1915) I.L.R. 37 All. 400, has been referred to by the learned Judge of this Court and also in the arguments here. A perusal of the judgement in that case will show at once that what the court there was considering was the meaning of the words 'becomes due' in Article 132 of the first Schedule to the Limitation Act. The words in the article applicable to the present case are not the same. They are quite different. The case of Chatar Singh v. Amir Singh (1916) I.L.R. 38 All. 204 has also been referred to. The facts of that case more closely resemble those of the present. That, like the present, was a case of a decree payable by instalments where there had been a default. It was an appeal under the Letters Patent and if reference is made to the decision by the single Judge of this Court (reported in 38 Allahabad at p. 204, it will appear that the decree provided that on default of payment of any one instalment as it fell due, the whole of the decretal amount remaining due would become payable at once. In the judgement on appeal (at page 207) it is said 'undoubtedly on the face of the decree it was directed that payment of the full amount should be made when default was made in payment of any instalment.' It will thus be seen that the decision proceeded upon the basis that the decree had in the events which had occurred, expressly directed the payment of the entire amount on a certain date, namely, the date of default. We think that the case of Chatar Singh v. Amir Singh (1916) I.L.R. 38 All. 204 is clearly distinguishable from the present case on this ground. We may also mention the case of Shankar Prasad v. Jalpa Prasad (1894) I.L.R. 16 All. 371, where the facts were very much the same under the corresponding article in the Limitation Act of 1877. We think the order of the court below was correct and it should be restored. We accordingly allow the appeal, set aside the decree and order of the learned Judge of this Court and restore the decree of the lower appellate court. We make no order as to costs.


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