KRISHNA PILLAI Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) This second appeal is by the decree holder and raises the question, whether his execution petition, dated the 4th February, 1961, is barred by limitation or not. The execution court held that it is not barred, but the Subordinate Judge in appeal held that it is. The second appeal coming before a learned Single Judge of this court, has been referred to a Division Bench for decision.

(2.) The decree is dated the 11th November, 1965, and the previous execution petition which was within time was dismissed on the 20th February, 1957. The present execution petition was thus filed more than three years and six months after such dismissal. In the execution petition it was stated, that the decree debt and the judgment debtors are governed by the provisions of Act 3 of 1956 and Act 31 of 1958, and that the amount of the first instalment of the debt as prescribed by the latter Act had been received from the respondent judgment debtor, but that he is in default for the next four instalments and it was prayed, that execution may be allowed, to recover the amount of the instalments in default. On the date of the execution petition, only five instalments as prescribed by Act 31 of 1958 were over.

(3.) Learned counsel for the appellant contended, that by virtue of the provisions of Act 31 of 1958, the decree which in terms was for the payment of money in lump forthwith, became converted into a decree for the payment of money in specified instalments, so as to attract the operation, as to the starting point of limitation, of Clause.7 in the third column of Art.182 of the Indian Limitation Act. Although several instalments are over by now, and the respondent does not claim to have made any deposit, the only question in this appeal is whether the execution of the decree for the realisation of the amounts of instalments 2 to 5 is barred by limitation or not. The contention of learned counsel stated above, was accepted by one of us sitting singly in Mammad v. Abdul Salam 1963 KLT 283 . But the contention of learned counsel for the respondent was two fold, first that the respondent is not an agriculturist, and second that in any event, unless an order had been passed specifying the several instalments and the amount payable for each instalment, the dates of such instalments cannot be the starting points for limitation for execution of the decree, even for the realization of the amounts of such instalments. The first contention has to be dismissed in limine on the short ground, that there was no such plea by the respondent in the objection to execution, and the case was dealt with by the two courts below7 as if the Act applied to him. The second contention does not appear to be based on any provision in the Act. S.4 enacts, as it were, a substantive provision as to the right of the debtor to discharge his debt in instalments. This section does not provide, either expressly or by necessary implication, for any application being made by the debtor for making payment, all that is necessary for him to do being, to make the payments as prescribed. Sub-s.(5) of S.4 enacts, that -