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ismail Rowther Vs. Gomakkani Rowther and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad679; (1942)2MLJ225
Appellantismail Rowther
RespondentGomakkani Rowther and anr.
Excerpt:
- - it is now agreed by the appellant that when an application like the one of 1935 has been presented and returned and retained ever afterwards in the custody of the applicant, it must be considered for the purpose of limitation as if it had never been made......clause in the decree that if default was committed in the payment of any of these instalments the decree-holder should be at liberty to apply immediately for the recovery of the whole of. the amount due. accordingly, on the 23rd september, 1935, the decree-holder appellant, as no money had been paid to him in regard to the first instalment, presented an execution application to the court in which he put forward a claim for the whole of the amount of the decree. this execution application was returned to him for the amendment of certain defects and was never re-presented. the next application is the one now under discussion, presented on the 19th august, 1938. it was contended originally by the decree-holder that this application was in time, although it was made more than four years.....
Judgment:

King, J.

1. The question at issue in this appeal is whether an application made by the appellant on the 19th August, 1938, was made within time. The application was to execute a decree passed in April, 1934, which provided for the payment of Rs. 400 in three annual instalments, the first of which was due on the 10th April, 1935. There was a clause in the decree that if default was committed in the payment of any of these instalments the decree-holder should be at liberty to apply immediately for the recovery of the whole of. the amount due. Accordingly, on the 23rd September, 1935, the decree-holder appellant, as no money had been paid to him in regard to the first instalment, presented an execution application to the Court in which he put forward a claim for the whole of the amount of the decree. This execution application was returned to him for the amendment of certain defects and was never re-presented. The next application is the one now under discussion, presented on the 19th August, 1938. It was contended originally by the decree-holder that this application was in time, although it was made more than four years after the date of the decree, because of the filing of the previous application. This argument was pressed both in the Court of the first instance and before the learned District Judge but has been no longer pressed before me. It is now agreed by the appellant that when an application like the one of 1935 has been presented and returned and retained ever afterwards in the custody of the applicant, it must be considered for the purpose of limitation as if it had never been made. Therefore there can be no question here of relying upon the earlier application of 1935 in order to save the later application from the provisions of the Limitation Act.

2. The second point, however, made by the learned advocate for the decree-holder is this:--That although his application is no doubt out of time in regard to the first instalment due in April, 1935, it is within time with regard to the second and third instalments, and therefore execution must be allowed to proceed with regard to these two instalments. This point did not commend itself to the learned District Judge on first appeal. He held that by his action in September, 1935, in presenting the earlier application, the decree-holder had definitely elected not to proceed to execute the decree for the instalments due but to enforce the penalty which it provided and execute it for the full amount of the decree. He therefore had brought it about by that action that the decree became executable in full on the 10th April, 1935. Consequently, when he applied to execute it for the first time in accordance with law in August, 1938, the whole decree must be considered to have become barred. It seems to me that this decision by the learned District Judge cannot be supported. The learned Judge quotes cases which lay it down that where a decree-holder has definitely elected to proceed in one of two ways permitted him by a decree he cannot be allowed later to go back upon his election and choose the second way instead of the way he originally chose. But the learned District Judge has not, it seems to me, really considered what is involved in this doctrine of election. The doctrine of election is not a mere legal prohibition to any party against ever changing his mind; it is an equitable doctrine which is applied in law in order to prevent prejudice being done to the opposite party. If I have two courses open to me, both of which affect some other party and I make it known to him by some deliberate act of my choice that I am intending to adopt one of these courses and not the. other, then I cannot be allowed subsequently to change my mind to his prejudice. He will naturally adjust his future actions to my previous conduct which has become known to him. There can be no doubt therefore that if in this case the execution application of September, 1935, had been in any way communicated to the judgment-debtor there would be a case for the application of the doctrine of election. He would have been informed in 1935 in the most formal and solemn way possible that the decree-holder had made his choice, and equitably, the decree-holder in those circumstances would never afterwards have been permitted to change it. But the facts are, as already indicated, that this execution application of September, 1935, never came to the notice of the judgment-debtor at all. It amounts in effect merely to a kind of memorandum by the decree-holder of a course which he had decided momentarily to pursue but which he subsequently abandoned. It cannot in any sense be said to prejudice the judgment-debtor. There can, therefore, it seems to me, be no legal obstacle whatever to the decree-holder deciding in 1938 that he will execute the decree for the instalments which may be due as he now contends. There is nothing in the cases which were relied upon by the learned District Judge to show that the doctrine of election was applied to circumstances in which the election of one party was never made known to the other, and it seems to me that it is obviously impossible for any authority to exist which would press the doctrine so far as this.

3. In the result this appeal must be allowed in part and it be declared that the execution application filed by the appellant is within time so far as his claim for the instalments due in 1936 and in 1937 are concerned, and is out of time so far as the first instalment is concerned. The decree of the learned District Judge will therefore be set aside and the execution application restored and directed to be disposed of by the District Munsif in accordance with law and this judgment.

4. In regard to costs, the order will be that each side will give and take proportionate costs in the lower appellate Court and in this Court and that the costs of the application in the first Court will abide the result.

5. Leave refused.


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