1. This appeal arises out of an execution matter and the only question is whether the last application for execution of the decree is barred by Section 48 of the Code of Civil Procedure.
2. The material facts are that on 29-3-1931 a decree was passed in favour of the appellant for Rs. 1205/- against the respondent. Execution was taken out on February 26, 1933 but was struck off on October 26, 1933 after recovery of Rs. 270/-. Another execution case No. 238 was instituted on October 20, 1934. A compromise was reached between the parties on June 20, 1937 which was recorded and given effect to by the court. By this compromise it was agreed that the judgment debtor was to pay a settled sum of Rs. 955/11/- by yearly instalments of Rs. 100/-. There was also the usual default clause, namely, that on failure to pay a single instalment the whole amount would become due and recoverable at once. The first instalment was to be paid on May 14, 1938.
3. On July 9, 1938 a sum of Rs. 75/- was paid and on July 4, 1939 another sum of Rs. 100/-was paid by the judgment-debtor.
4. It appears that the judgment-debtor having not paid in full the instalment of 1940 the decree-holder took out execution of the decree, enforcing the default clause. It was registered as execution case No. 176 dated May 28, 1940. The amount claimed was Rs. 820/11/- i.e. the whole amount due. This petition was dismissed for default on September 21, 1940.
5. Some more amounts were paid by the judgment-debtor. They were:
on June 14, 1940.
on June 1, 1941.
on June 30, 1942.
on July 1, 1943.
6. The decreeholder presumably because the 1942 instalment was not paid in full, again took out execution No. 15 on September 14, 1943 for the entire outstanding amount. In other words, the default clause was again enforced. This execution underwent a chequered process and eventually was dismissed on September 24, 1952 on the ground that initially the decree holder had prayed for the attachment of properties of the judgment-debtor, but subsequently he wanted his arrest and detention in civil prison, which was not permissible in the same proceeding. Today, I am not concerned with the correctness of that order because Shri Bhagwan Swaroop does not urge that the present application referred to below is not a fresh application.
7. On October 7, 1952 the decree-holder again applied for execution of his decree (case No. 74) for the recovery of Rs. 1108/2/-. This is now under consideration. The judgment-debtor assailed it before the Munsif of Sironj as barred by section 48 of the Code of Civil Procedure. The objection found favour with that court and the execution petition was accordingly dismissed. Decree-holder's appeal was also dismissed by the civil Judge, Baran in his appellate jurisdiction. He then preferred this second appeal; which has been transferred by the Rajasthan High Court to this court on the Re-organisation of States.
8. Shri Bhagwan Swaroop contends that although the first instalment became due on May 14, 1938 there were subsequent payments by the judgment-debtor, and the default clause being exclusively for the benefit of the decree-holder even if he had exercised his right to recover the whole amount he was entitled to give it up subsequently, and the judgment-debtor could have no objection to that so long as he did not make out a case of estoppel against the decree-holder. The learned counsel relies on the decision in Firm Hardeo Dwarka Dass v. Binjraj Hari Ram, ILR 1943 Nag 334: (AIR 1943 Nag 170).
9. Shri Anand appearing for the judgment-debtor, relies on Ismail Rowther v. Gomakani Rowkther, AIR 1942 Mad 679 and Pandurang v. Mahadeo, AIR 1931 Bom 263. The argument of the learned counsel is that once the default clause had been put in action there could be no going back by the decree-holder.
10. The material provisions of the compromise are these:
1. Judgment-debtor was to pay to the decree-holder an agreed sum of Rs. 995-11-0 by annual instalments of Rs. 100/- beginning from Baisakh Samvat 1995.
2. In case of default of any instalment, the decree-holder was entitled to recover at once the whole amount due together with interest at rupee one per cent per month.
11. It is quite clear that (1) the real intention of the parties was to accommodate the judgment-debtor so that he could pay the agreed sum of Rs. 955/11/- by easy instalments of Rs. 100 every year, (2) in that manner 'dates' were fixed for the recurring payments, and (3) the decree-holder was given the right to recover the whole amount due in case the judgment-debtor did not prove worthy of the accommodation and did not fulfil his promise. The last condition meant that the decree-holder was not obliged to wait until all the instalments were defaulted nor to go on applying for execution every year for the recovery of each instalment. A person who was accommodated in the matter of payment of something which (or more than which) he could be compelled to pay at the time of the compromise, could not be heard to say subsequently that he would not perform his obligation but would insist that the other party must respect his part and wait until all the instalments became due. It is on this principle that the default clause is usually incorporated in such a compromise.
12. On analysing the terms of the compromise I am of the opinion that the exigibility clause was ''entirely for the benefit of the decree-holder and it could not be turned into a 'handicap'. I have borrowed with great respect these expressions from the decision of the Privy Council in Lasa Din v. Mt. Gulab Kunwar, 59 Ind App 376: (AIR 1932 PC 207) and the judgment of Vivian Bose J. (as he then was) reported in Gulabrao Dada v. Ganpati Tukaram, ILR (1943) Nag 630: (AIR 1942 Nag 138).
13. But for a default clause, every instalment was to fall due in or about the month of May every year. If the instalment was not paid the amount could be recovered by taking out execution in respect of that sum only. According to Section 48 of the Code of Civil Procedure the period of twelve years within the meaning of that section was to run respectively from each of the dates when the instalments became due.
14. The default clause gave to the decree-holder an additional right. If the judgment-debtor failed to pay any single instalment on the due dates, he could enforce it and recover the whole amount due whenever the judgment-debtor failed to pay any of the instalments, but that did not affect the 'dates fixed for the recurring payments'. From each of those dates must be computed the period of twelve years preceding the present application for execution.
15. Shri Anand contends that according to the terms of the compromise, on the happening of any default, the decree-holder had two options before him--either to waive the default clause and insist on the payment of individual instalments as and when they fell due or to enforce that clause and proceed to realise the whole amount due--but the decree-holder having once elected to take the benefit of the default clause, could not subsequently turn round to say that he wanted his instalments. I cannot accept this proposition simpliciter. The judgment-debtor has further to show why the decree-holder cannot fall back on the alternative right. Shri Anand could not support his argument by pointing out any principle of law behind it.
I think a judgment-debtor must in such a case succeed if he makes out a case of estoppel. But then he must establish not only that the decree-holder by his action (taking out execution for the entire amount) caused him to believe that the decree-holder had made his choice but also that the judgment-debtor acted upon it and was put to a prejudice as, for instance, he had to pay more than the amount of one instalment. In the absence of a prejudice, the judgment-debtor has no good defence against the decree-holder being given the benefit to recover such instalments as may have fallen due within the statutory period.
16. No doubt there has been much diversity of opinion on the question whether a decree-holder, having once sought to enforce the exigibility clause, can subsequently take advantage of the clause fixing instalments for the purposes of Section 48, Civil Procedure Code or Article 182 (7) of the Limitation Act. However, I do not propose to review the case law as it has been already done in Abdul Latif Khan v. Mt. Sikander Begum, AIR 1953 All 283. I find myself in entire and respectful agreement with the views expressed therein. There the decision of Pollock J. in ILR (1943) Nag 334: (AIR 1943 Nag 170) has been relied on where the learned Judge observed:
'Apart from any question of estoppel, I do not see why he should not be allowed to take out execution to recover the instalments merely because he has in the past attempted to recover the entire decretal amount. If by taking out execution for the entire decretal amount he has recovered more than the instalments that were then due, the position might be different; but where he has recovered nothing in the past, I do not see on what principle he should be held to be barred from recovering instalments that have fallen due. The decree, which remains unaltered, is one primarily for payment in instalments, and the option to recover the entire decretal claim on the occurrence of the default is a provision inserted for the benefit of the decree-holder who may exercise that option or not as he chooses.'
17. The Bombay case, AIR 1931 Bom 263 cited by Shri Anand has been dissented from in botk the above cases (Allahabad and Nagpur). And the Madras case cited by him is not in conflict with the Nagpur decision, as explained in the Allahabad case.
18. I have before me my judgment in Devidas v. Parma, Civil Revision No. 40 of 1957: (AIR 1959 Madh Pra 413). That was a case for the application of Article 75 of the Limitation Act. There I held that Nagpur decisions were consistent and the legal position was settled. I relied inter alia on the observations of Padhye J. (see Raghunathdas v. Warlu Bapu, ILR 1947 Nag 947: (AIR 1948 Nag 225)) where it was held that as soon as a default occurred, the original terms of the compromise were 'superseded'. But the same position does not obtain with regard to an execution matter. In Devidas's case, AIR 1959 Madh Pra 413 I held that the decision of Pollock J. in ILR (1943) Nag 334: (AIR 1943 Nag 170) was not applicable to a suit (based on an instalment bond) governed by Article 75 of the Limitation Act as it related to an execution matter. There I further mentioned this distinction to have been pointed out in the case of Shahaji v. Tukaram, ILR (1945) Nag 955; (AIR 1946 Nag 117).
19. In the present case the aforementioned dates and figures leave no manner of doubt that on the one hand, in all the three execution applications (No. 176 of May 28, 1940, No. 15 of September 14, 1943 and No. 74 of October 7, 1942) the decree-holder remained consistent in claiming the whole amount from the judgment-debtor, and he never changed his mind and, on the other hand the judgment-debtor went on paying instalments wholly or partially in spite of execution No. 176. In my judgment there is no circumstance to create an estoppel against the decree-holder in the previous two cases No. 176 of May 1940 and No. 15 of September 1943. This I say because:
(1) Nothing was recovered from the judgment-debtor by a process of the Court in any of the last two execution proceedings (No. 176 of 1940 and No. 15 of 1943).
(2) The judgment-debtor never made more than one payment in any particular year, and
(3) The judgment-debtor never paid more than Rs. 100/- at a time.
20. For these reasons, following the decision in ILR (1943) Nag 334: (AIR 1943 Nag 170) cited above I hold that the rule of estoppel does not apply and there is nothing to preclude the decree-holder from obtaining such relief as the law may allow him.
21. Shri Anand lays a great deal of stress on the fact that the present execution is not in respect of ''unpaid instalments' but is for the 'whole balance due' to the decree-holder alter deducting all the money that was paid to him out of the whole amount which was found due under the compromise. It is further urged that the court cannot convert this execution application into one for the recovery of 'instalments which are within twelve years'. This argument is not acceptable to me because a party must be given the relief which is justly due to him even though he may have fallen into errors of form in framing his execution application. Even in the case of frame of plaints and written statements, where the rules are more strict, their Lordships have laid down in Kedar Lal Seal v. Harilal Seal, AIR 1952 SC 47:
'The court would be slow to throw out a claim ton a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.'
22. I also recall here the observation of Bowea L. J., in Cropper v. Smith, (1884) 26 Ch D 700:
'It is a well established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their right .... I know of no kind of error or mistake which, it not fraudulent or intended to overreach, the Court ought not to correct it it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.............'
23. I am clearly of the opinion that an execution application for the realisation of the entire amount due includes a prayer for the recovery of the overdue instalments. 1 fully concur with the decision of the Allahabad High Court in Abdul Latif's case, AIR 1953 All 283 cited above, where it was held:
''An application for execution to recover the entire amount must be deemed to include a prayer for execution of the smaller amounts relating to the instalments which had fallen due. The decree is one, and one only. It remains an instalment decree so long as the default clause is not effectively enforced and the right of the decree-holder to execute the decree as an instalment decree comes to an end'.
24. As a result of the above discussion, I would sum up my opinion thus:
(1) In the case of an instalment decree carrying with it a default clause, the decree-holder, on the happening of a default, is at liberty to execute it either for the recovery of the instalments which have already fallen due or may enforce the exigibility clause, which is entirely for his benefit.
(2) Even if the decree-holder has taken out execution for the entire amount under the default clause, he can subsequently change his mind and, falling back on the instalment clause, may execute the decree only for the due instalments, provided there are no circumstances which estop him.
(3) It is for the judgment-debtor to show how he was prejudiced.
(4) An application for execution in respect of entire amount due can also be treated as an application for the recovery of due instalments.
25. It follows that the appellant is entitled to recover such amount as may be found due on account of only those instalments which were payable within twelve years of the present application for execution. It is needless for me to observe that prima facie, interest was made payable only when the default clause was enforced, but no interest was payable on instalments as such. However that question is not before me for decision today and it must be left for the executing court to decide when he calculates the amount payable by the respondent. Owing to the defective frame of the execution application, the decree-holder is disentitled to costs.
26. This appeal is, therefore, partly allowed, the judgments and decrees passed by both the courts below are set aside and it is held that the application for execution filed by the decree-holder on 7-10-1952 was not barred by Section 48 of the Code of Civil Procedure, but the decree shall be executed only in respect of such unpaid instalments as had fallen due within 12 years immediately preceding 7-10-1952. The case shall now go back to the executing Court for further proceedings. Parties shall bear their own costs heretofore incurred in all courts.