1. The decree-holder, who is the appellant before us, obtained a money decree in the year 1932 against the respondents-judgment-debtors. He sought execution of the decree and was resisted by the judgment-debtors on the ground that his petition was barred by limitation. The facts are these. In the year 1935, the judgment-debtors made an application, under Rule 11 of Order XX of the Civil P. C., praying for permission to pay the decretal dues in instalments. On 19-8-35 the executing Court passed an order in the following terms:
'Connected records seen. Parties present, that is, the decree-holder through the Am Mukhtear and the judgment-debtors in person. They file a petition of compromise, the terms being that the ones of Rs. 3588/3/9 will be paid by the judgment-debtors in 18 annual instalments of Rs. 200/- the iast instalment being Rs. 188/3/9. The terms given in the petition of compromise are accepted.'
In 1942 the decree-holder filed his first execution case for recovery oi Rs. 400/- towards arrears of instalments due, but on the judgment-debtor paying Rs. 200/- that execution was struck off on 28-7-42. The next execution case, out of which the present appeal arises, was filed on 11-4-46 in this the decree-holder claimed a sum of Rs. 1998-2-9 but on 16-9-46 he amended his execution petition, alleging that the juugment-debtor had made payment in respect of instalments due for 1943 and 1944 and confining his claim to the recovery of arrear instalments due for 1944 to 1946. In resisting the execution the principal contention of the judgment-debtors (respondents) is that it is not maintainable being barred by time. Some other objections were also raised but it is not necessary to notice them here as they have not been pressed. The substance of the respondents' contention is that the petition of compromise, on the strength of which the executing Court passed orders on 19-8-35, fixing payment in 18 instalments, contained a default clause in which it was stipulated that in the event of default in the payment of any instalment, the entire decretal dues shall be realised by execution. This clause, according to the contention of the judgment-debtors, made it obligatory on the part of the decree-holder, in the event of default of any instalment, to levy execution for the entire decretal dues and not merely in respect of the particular instalment that fell in arrear, and since in this case the decree-holder failed to take steps to levy such execution, his present petition confining his claim to the arrears for 1944-46 is not maintainable being barred by limitation as it was filed beyond the prescribed period of three years. The entire question therefore turns upon the interpretation to be put on this particular clause in the compromise petition. The learner Civil Judge, Patna State, who heard the appeal has observed in his judgment that 'in the compromise petition there was a default clause', but without discussing what the effect of such a clause would be, he appears to have assumed that the decree-holder's right to take out execution in respect of the arrear instalments due was, in this case, clearly barred by time. How he arrived at this finding is not clear. The compromise petition itself containing the alleged default clause is not before us, nor have we been able to get hold of any such document on a reference to the lower Court as the papers appear to have either been destroyed or are not available there. In such a state of affairs we have only to be guided by the reference in the judgment of the lower appellate Court to the 'default clause' as indicating that such a clause was there.
2. Learned Counsel for the appellant-decree-holder put in a memorandum in this Court, made by his agent, and containing what purport to be the terms on which the parties entered into the compromise. It is contended for the respondents that this document, the correctness of whose terms is not impugned, is admissible as secondary evidence of tile existence of the clause itself. But it is at least debatable whether such a memorandum can be accepted as secondary evidence though it might have been open to the person, in whose custody the document remained, to examine himself in proof of its terms and use the memorandum as an aid to his memory. In view however of the respondents' admission of the genuineness of the contents of this document it is not necessary for us to express any final opinion on this aspect. And although the parties are agreed that the memorandum is a truthful record of the compromise, terms, we are reluctant to take it in as secondary, evidence as the order of the Executing Court dated 19-8-35 does not make any reference to the defaulting clause; otherwise it would have been embodied in the decree itself.
3. Assuming however that there was a clause relating to default, the next question for consideration is whether it would bar the decree-holder from proceeding with his execution in respect only of the arrear instalment. The clause is in the following terms: 'If there is, any default in payment of any instalment, execution will be levied for the 'entire' amount'. According to Mr. Misra, learned counsel for the respondents, this clause does not give option to the decree-holder which he is at liberty to waive in the event of default, and that it makes it obligatory on the decree-holder to levy execution for the unpaid balance remaining due in the event of default of any instalment. Learned counsel for the appellant points out that there had been defaults previously and that there had been a prior execution in 1942 and that the contention, now sought to be raised on behalf of the judgment-debtors is, therefore, barred, by res judicata inasmuch as no objection relating to the interpretation of this clause in the compromise decree was raised at the time of the previous execution. Secondly, he argues that this clause' in the compromise decree is an optional clause, put In for the benefit of the decree-holder, which he could waive-if he so likes; in other words even in the case of default of any instalment or instalments the decree-holder may or may not levy execution for the entire balance remaining unpaid and his execution petition is accordingly maintainable with regard to the recovery of instalments in respect of which there had been default. Reliance is placed on the Pull Bench decision of the Calcutta High Court reported in 'Ranglal v. Shyamlal', AIR (33) 1946 Cal 500, where it is pointed out that an instalment decree consists of three parts; the first part fixes the amount to be paid by the judgment-debtors and is binding on both the panties to the compromise; the second part confers a benefit on the judgment-debtor giving him time to pay the decretal dues in instalments; and a third part is inserted for the benefit of the decree-holder by which he is given the option, in the event of default, to realise the entire decretal amount by execution. It is further laid down in that case that wherever possible the clause intended for the benefit of the decree-holder should be interpreted in his favour. For instance words like 'shall be payable' 'shall be realizable' 'shall become due' etc., are to be interpreted for the benefit of the decree-holder. Unfortunately however, as has been rightly pointed out by the learned counsel for the respondents, the language alleged to have been used by the parties in this case, in the compromise petition, is somewhat different. The specific terms used are that 'the entire amount shall be realised by execution'. The question is, does the language used compel the decree-holder to levy execution and ask for the entire amount in the event of default of anyone instalment, or does it connote only a power given to him that he may, if he chooses, require the entire amount to be paid up at once instead of allowing the judgment-debtor to pay in instalments. I am inclined to take the view that it is no more than a clause intended to enable the decree-holder to withdraw the benefit conferred upon the judgment-debtor of paying in instalments and that it was perfectly open to the decree-holder to waive the default made on a previous occasion and levy execution for the particular instalment, as he has alone in the present case. The cases reported in 'Maung Sin v. Ma Tok', AIR (14) 1927 PC 146: 54 Ind App 272 & in 'Lasa Din v. Gulab Kunwar', AIR (19) 1932 PC 207; 59 Ind App 316 would appear to lend support to this view, in the first case the Judicial Committee proceeded on the principle that in such cases a recurring right to execute is created in favour of the decree-holder and is governed by Article 182(7) of the Limitation Act. In the second case it was held that the proviso that in default of payment of interest in any one year the creditor would be entitled to realise the entire mortgage money at once was one exclusively for the benefit of the mortgagees and that it purported to give them an option either to enforce their security at once, or to stand by for the full term of the mortgage, A recent case of the Patna High Court reported in 'Nirash Singh v. Baldev Singh', AIR (34) 1947 Pat 250 has also been brought to our notice and this case follows the Full Bench decision of the Calcutta High Court reported in 'AIR (33) 1946 Cal 500'. The only other case referred to by the learned counsel for the respondent is the Full Bench decision of the Bombay High Court reported in 'Chunilal Motiram v. Shiv Ram Nagoji', AIR (37) 1950 Bom 188. I do not think that any of these cases support the proposition contended for by Mr. Misra, learned counsel for respondents. The one thing common to all these cases is the principle that the construction of the decree should depend upon the language employed by the parties. The second principle is, as has been pointed out in the Full Bench decision of the Calcutta High Court, that wherever possible the language should be construed in favour of the decree-holder where the clause is intended for the benefit of the decree-holder. None of the cases referred to has gone to the length of the decision in 'Shib Dat v. Kalka Prasad', 2 All 443 to which a reference has been made in the Full Bench decision of the Calcutta High Court. We would therefore be justified in following the principles laid down in 'AIR (33) 1946 Cal 500' in construing the present compromise decree as containing a clause which conferred an option on the decree-holder to execute the decree for the entire amount, in the event of default of any instalment, and that it did not compel him to do so. In this view of the matter the order of the Trial Court holding that the execution is not barred by time must be upheld and the order of the learned Civil Judge must be set aside.
4. The appeal is accordingly allowed with costs.
5. I agree.