K.C. Das Gupta, J.
1. This appeal is against an order of the Subordinate Judge, Darjeeling dismissing an application under Section 47 of the Code of Civil Procedure by which the judgment-debtors objected to the execution of a decree as prayed for in an application made on the 10th September, 1954. The prayer there was in these words:
'As the judgment-debtors defaulted in paying the instalments as provided in the modified decree the decree-holders pray that they be put into possession of the properties which are described in the schedule herein and which were mortgaged in favour of the plaintiffs-decree-holders and auction purchased by them in consequence of the execution of the re-opened decree, as provided in Section 36(2) (e) of the Bengal Money Lenders' Act, 1940.'
It appears that on an application under Section 36 of the Bengal Money Lenders' Act, a new preliminary decree was made by the Subordinate Judge, Darjeeling, on the 25th May, 1942. This decree was for a total sum of Rs. 35,295-12-7 but instalments were allowed and the relevant portion of the decree is in these words:
'This will be payable in equal yearly instalments of Rs. 5000 each year in Chaitra commencing on 1349 B. S. Default of any one Kist will make the mortgaged property liable to be restored to the decree-holder A. P. again and the sale price of Rs. 65,000 will be set off against the outstanding balance of the new decree. ... .In default of Kists, besides the above relief, it will be open to the decree-holder to have the final decree passed, if the Court so orders, after due notice as per Section 34(1)(a) (ii) of the Bengal Money Lenders' Act, 1940 for the whole amount. The decree-holder A P. do restore possession of the mortgaged property to the Judgment-debtor within one month from this date, failing, the Judgment-debtor will have it through Court.'
On appeal this Court was of opinion that the new decree made by the trial Court should be modified in two respects, namely, as regards the amount a mm of Rs. 1461/- should be deducted from the amount held payable by the trial Court and the decree would be for Rs. 33,834-12-7. As regards instalments this Court allowed the judgment-debtors to pay the balance in nine equal annual instalments This Court also pointed out that there was no necessity of making a preliminary decree as the properties had already been sold and only there will be an instalment final decree. It was ordered that the matter should be sent back to the trial Judge the order that the decree may be modified as indicated by this Court. A fresh decree was drawn up by the trial Court On the 4th June, 1945, in these words:
'In pursuance of the orders passed by the Hon'ble High Court on the 5th January, 1945, in Appeal from Original Decree No. 241 of 1942 a final decree for Rs. 33,834-12-7 less the sum of Rs. 3500 which has already been paid by the judgment-debtors, that is, Rs. 30,334-12-7 (Rupees-thirty thousand, three hundred and thirty-four, annas twelve and pies seven) only being the amount of the principal and interest due on the mortgage bond, dated 16th January 1922, is drawn up. The judgment-debtors are allowed to pay the said amount in nine equal annual instalments. The first instalment is to be paid within the 15th April, 1945, and the subsequent instalments within the 15th April of each successive year.'
In their application under Section 47 of the Code of Civil Procedure, the only substantial objection raised by the judgment-debtors was that the execution application was barred by limitation. That appears also to be the only point urged at the hearing of the matter. The learned Judge, relying on the decision of the Privy Council reported in Maung Sin v. Ma Tok , held that the application was not barred by limitation. In that view, he dismissed the application under Section 47 of the Code of Civil Procedure.
2. Before us also the main contention pressed on behalf of the appellant is that the application is barred by limitation. Another point which was also raised was that the fresh decree drawn up by the Subordinate Judge on the 4th June 1945, did not contain any direction that in default of payment of any one last the mortgaged property will be liable to be restored to the decree-holders. If one confines oneself to the decree as drawn up on the 4th June, 1945, only, this criticism would appear to be correct. It is necessary, however, to remember that when drawing up the decree on the 4th June, 1945, the learned Subordinate Judge made it clear that this was being done in pursuance of the orders-passed by the Hon'ble High Court on the 5th January, 1945, and that the High Court decree itself had said that this would be in modification of the original decree that had been drawn up. It is, in my opinion, reasonable to read this decree of the 4th June, 1945, as not complete in itself but as merely a modification of the decree as previously drawn up. It becomes clear therefore that the direction given in the original decree that 'default of any one kist would make the mortgaged property liable to be restored to the decree-holder auction purchaser again' was being continued in the fresh decree.
3. This brings us to the real objection raised in this case, namely, that the application is barred by limitation inasmuch as it was made beyond three years from the date of the first default. A number of cases were cited before us but I find it unnecessary to refer to them in detail. The rule that is dearly laid down in all those cases is that in every case the decree itself has to be construed in order to arrive at a proper conclusion as to the effect of the default clause. The real question is when the first default took place and the decree-holders became entitled to be restored to possession of the property, did the clause for restoration exhaust itself? If it did, then the time for execution would run from the date of the first default and an application for execution made beyond three years from that date would be barred. If, however, the direction did not exhaust itself on the first default but on the second and third default and thereafter on each default, a fresh right to be restored to possession came into existence, the application for execution within three years from the date of the last default would be maintainable. In , the decree provided that certain properties were to remain in possession of the defendant who could pay to the plaintiff annually the sum of Rs. 2000/- in the month of Kason and in default of payment of the same, the said property would be made over to the plaintiff. One of the questions raised was whether, as regards delivery of possession, the application made beyond three years from the date of the first default, was barred. Dealing with this question, Lord Carson, delivering the judgment of the Privy Council, observed:
'It was contended, however, on behalf of the appellant at the hearing before their Lordships that even if a decree could be made for the annual payments due in 1923 and 1924, nevertheless the respondent was not entitled in default of each payment to have the property mentioned in the decree made over to the respondent, the argument being that, as no claim was made to the possession of the property on default of payment during the early years after the decree, time commenced to run from the date of the earliest default, and the claim to the land was therefore time barred. Their Lordships cannot agree with this contention. They are of opinion that upon the construction of the decree itself, on the occasion of a default in each payment, the right of the respondent to have the said property made over to her arose, and therefore the claim to the lands was not time barred.'
4. There can be no doubt that in making the decision that the right of the respondent to have the said property arose on the occasion of the default of each payment, their Lordships were construing that particular decree. The decree which we have to construe is an instalment decree. That, however, is in my opinion, no reason to construe it differently. Reading the decree and the provisions of Section 36 of the Money Lenders' Act in pursuance of which such a direction as regards restoration of possession has to be made by the Court, it will be, in my opinion, reasonable to hold that the right to get restoration of possession was not exhausted as soon as the first default took place; and that, while such a right did come into existence on the first default, the right to get restoration of possession arose again on the second default and thereafter on the third default and so on. I am aware that in Chunilal Motiram v. Shivram Naguji : AIR1950Bom188 , Chief Justice Chagla, with whom two other learned Judges, Mr. Justice Gajendragadkar and Mr. Justice Dixit agreed thought that the decision of Maung Sin's case (A) was in the special circumstances of that case and could not justify a conclusion as regards a similar construction of a decree where the instalment decree provides that in failure of payment of certain instalments the whole amount due may be recovered. Special considerations may well arise in construing a decree of the nature that had to be considered by the Bombay High Court, where the default clause provided that on failure of payment of certain instalments the whole amount due might be recovered. There might be obvious difficulties in saying that the same right of getting the whole amount recovered arises on each default. Those special considerations do not, however, appear in a case-where, as in the present decree, and in similar decrees, made under the Bengal Money Lenders' Act. The provision is, that in default of any one kist the decree-holder will be entitled to be restored to possession of the properties. I am of opinion that while we have to remember that the decision in Maung Sin's case (A), was given on the construction of its own decree, that case is a strong authority for construing a decree as in the present case which is very similar to the decree construed in that case in the same way and for thinking that on the occasion of default of each instalment the right of decree-holder to have the property restored to him arose, and consequently, the application for execution was not time barred.
5. I would, therefore, dismiss the appeal. There will be no order for costs.
U.C. Law, J.
6. I agree.