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Ramsodoy Ghose Vs. Nilmadhub Chuckerbutty - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal857
AppellantRamsodoy Ghose
RespondentNilmadhub Chuckerbutty
Excerpt:
execution of decree - decree payable by instalments--instalments--construction of decree--limitation. - .....cheyt of each year from 1284 to 1289, rs. 25, and in assin 1290, rs. 25. it also provides that the decree-holder on default of payment of any instalment may execute the decree for the whole amount not paid. in cheyt 1283 a default was made; but notwithstanding three instalments were afterwards received by the judgment-creditor.2. the question now is, whether the application to execute the decree having been filed more than three years after cheyt 1283, when the entire amount could be realised in execution on failure to pay an instalment, execution is not barred by limitation, or whether it can be executed for the amount of the remaining instalments within three years from the time when each became due.3. the munsiff dismissed the application.4. we have had the decree read out to us, and,.....
Judgment:

Prinsep, J.

1. In this case the decree, which was drawn up by consent of parties, declares that the decretal amount should be paid in instalments, namely, Rs. 25 in Cheyt 1283, in Assin and Cheyt of each year from 1284 to 1289, Rs. 25, and in Assin 1290, Rs. 25. It also provides that the decree-holder on default of payment of any instalment may execute the decree for the whole amount not paid. In Cheyt 1283 a default was made; but notwithstanding three instalments were afterwards received by the judgment-creditor.

2. The question now is, whether the application to execute the decree having been filed more than three years after Cheyt 1283, when the entire amount could be realised in execution on failure to pay an instalment, execution is not barred by limitation, or whether it can be executed for the amount of the remaining instalments within three years from the time when each became due.

3. The Munsiff dismissed the application.

4. We have had the decree read out to us, and, though it is not expressed in as clear and precise language as we would expect to be used in a document of this nature, we think that, on a proper consideration of that document, the decree-holder had, on default of payment of any instalment, a mere election to enlarge his power, and instead of executing the instalment decree, to execute the decree for the whole amount, and at his option proceed to realise the whole amount due. This clause in the decree which enlarged his power was made solely for the protection and benefit of the decree-holder. It does not infringe on any public right or public policy, or affect the right of any third party, and there was nothing to prevent the judgment-creditor's waiving any advantage that he might obtain under it. In the present case he never exercised the election to realise the whole amount, but on the contrary received instalments due subsequent to the default. He must therefore be held to have waived his right to execute the decree for the whole amount, but he is entitled under the decree to realize instalments still due. Article 179, Clause 6 does not apply to such a decree.

5. We dismiss the appeal with costs.


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