1. This is a Rule calling upon the opposite party to shew cause why the order complained of should not be set aside. The present applicant is a decree-holder. He brought a suit on the 10th May 1911 against five persons to recover certain moneys due on a promissory note. The suit was decreed on compromise. The compromise petition was dated the 1st July 1911 and the decree passed on the terms of the compromise was dated the 10th July of the same year. Under the terms of the compromise, it was provided that a certain sum should be paid by each of the various defendants and by instalments and that, default being made in the payment of one of the instalments, the whole amount would become due. The decree itself stated the instalments but it omitted, by an error presumably, to state the condition as to the whole amount becoming due on default being made by the judgment-debtors in the payment of the instalments. An application was made for execution on the 10th July 1914 against all the five defendants. That application was rejected by the learned Judge on the ground that the prayer for execution was not in accordance with the terms of the decree. The present application was then made on the 10th November 1915 against the defendant No. 2 alone and the learned Judge dismissed this application too on the ground that the decree is barred by limitation. Against this order the present Rule has been obtained.
2. The first point that has been argued is that the Court is not entitled to go behind the decree, but is bound to take the decree and not consider what appears in the solenamah or the petition of compromise. The order-sheet shows that the suit was decreed in accordance with the terms of the compromise and it was necessary for the Court, in order to properly understand what the decree was, to look at the terms of the compromise. That being so, the Judge was clearly entitled to consider the terms of the compromise.
3. The next point that was taken was that the application for execution dated the 10th July 1914 was an application made in accordance with law in a proper Court for execution and that, therefore, the limitation was saved by that application. But what happened in that case was that the application was dealt with by the learned Judge under the provisions of Order XXI Rule 17, sub Rule (1) of the Code of Civil Procedure, namely, that the Court having ascertained that the requirements of Rules 11 to 14 of the said Order had not been complied with rejected the application. It is clear from the terms of sub-Rule (2) of Order XXI, Rule 17, that, when a Court rejects an application under Order XXI, Rule 17, sub-Rule (1), the application in that case shall not be deemed to have been an application in accordance with law, because that sub-rule shows that, when the Court permits an application to be amended and then receives it,the application then and only then can be deemed to have been ah application in accordance with law. I am of opinion that in this case the application dated the 10th July 194, having been rejected under Order XXI, Rule 17, sub-Rule (1), as not being an application in accordance with law, that application would not be one that would save limitation.
4. Then the next point that was argued was that, in any case, the decree being payable by instalments, the decree-holder had the option either to compel immediate payment of the whole amount Due under the decree or to recover the money in accordance with the instalments. In support of that view, the decision of this Court in the case of Chunder Komal Das v. Bisassurree Dassia 30 M. 126 : 16 M. L.J. 514 : 1 M.L.T. 381 has been relied upon. That decision has not been followed in many cases and I prefer to follow the decisions which have taken a contrary view.
5. In the result, the present Rule fails and must be discharged with costs, one gold mohur.
6. I agree.