1. The lower Appellate Court dealt with the case apparently on two grounds: (1) that there was a verbal contract to pay the judgment-debt by instalments, and the suit would lie on that contract; (2) that a fresh cause of action arose on defendant's failure to pay the contract instalments.
2. The defendant appeals on the ground that the lower Appellate Court has omitted to try the question of limitation, and contends that limitation ran before 29th June 1878, and that, even allowing plaintiff the time occupied in the execution-proceedings, which terminated on that day, the suit is barred.
3. It certainly appears to us that the Subordinate Judge's decree is erroneous on his own view of the case. If there was a cause of action on defendant's failure to pay the instalments, then certainly the suit was not brought in time from the 14th August 1875, the date of the first instalment, and the claim should have been reduced by the amount of that, and possibly of other instalments also.
4. Then it appears to us, that the Subordinate Judge has made a case for the plaintiff. She did not claim on a verbal contract, but on a written one; but no ground of appeal has been presented upon this point.
5. We are unable to see upon what grounds the plaintiff can lay her cause of action on the 29th June 1878.
6. The suit, therefore, resolves itself into this--What is the nature of the suit upon the kistibandi, and what is the date from which limitation runs, and what is the period of limitation?
7. The nearest approach to a correct answer to the first question is, that it is a suit for money payable on an account stated: see Article 64, Schedule ii, Act XV of 1877. The petition or kistibandi is not inadmissible as evidence of the debt, and we may, we think, take it to be an account stated in writing, with an agreement for payment at a certain stated period of time. The time for the payment of the first instalment arrived on 14th August 1875, and one of the conditions of the agreement was, that, on defendant's failure to pay one of these, the plaintiff might take out execution for the whole amount under the existing decree.
8. But it has been decided by a competent Court that this condition is invalid. The parties are bound by that decision, because there has been no appeal against it. It is evident, therefore, that the kistibandi or petition contains two conditions which are invalid and cannot be carried out,--viz.: (i) the clause about the hypothecation of immoveable property, and (ii) the condition referred to above. That being so, the case cannot come under Article 75 of the Limitation Act; because, conceding that the petition of kistibandi was a bond, it did not provide that, on default of one instalment, the whole amount shall be due. The provision was that the whole amount shall be realizable by execution of the decree.
9. This provision has been held by a competent Court in a proceeding between the parties to be invalid. Putting, therefore, these two invalid conditions out of consideration, the petition or the kistibandi amounts to this. On an adjustment of accounts between the parties on the 7th July 1875, Rs. 689-14-15 were found due from the defendant to the plaintiff, and the former promised to liquidate the debt in certain instalments. In our opinion, therefore, the case is governed by Article 64.
10. In this view of the contract between the parties, the suit is premature as regards the instalments which had not fallen due at the time when the suit was instituted. For these instalments the suit must be dismissed on this ground.
11. As regards the first instalment, which had fallen due more than three years before the institution of the suit, viz., on 14th August 1875, the claim is barred. The plaintiff is entitled to a decree for the other instalments due before 29th January 1879.
12. The appeal will, therefore, be allowed, and the decrees of the lower Courts set aside, and in lieu thereof a decree passed for the sum of Rs. 248-4, being the amount of the instalments falling due on 9th February 1876 and following dates down to 29th January 1879.
13. The costs of the suit and appeal throughout will be allowed to the plaintiff and defendant proportionately to the result.