PARVATHY KUNJAMMA Vs. EASWARAN EMBRAN

JUDGEMENT

(1.) The judgment debtors are the revision petitioners. The respondent decree holder filed the petition for executing an order passed under S.11 of Act 31 of 1958. That order was passed under S.11(3) of the Act allowing the decree holder to recover balance one-half amount (half amount being deposited along with the petition) in 10 equal half yearly instalments together with interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date on which the mortgagor received possession of the property mortgaged. Under that sub-section the mortgage shall be deemed to be discharged on payment of the last instalment. It is admitted by both sides that the last instalment was to be paid on 19-9-1968. The revision petitioners paid only the initial payment and defaulted payment of the balance amount. The first execution petition was filed on 10-10-1977, which was dismissed for default on 22-2-1978. The second execution petition was filed on 5-9-1980. The revision petitioners filed objection to the execution petition raising the contention that time for recovering each instalment will run from the due date of each instalment and as such the decree holder is entitled to realise only one instalment.

(2.) Relying on the ruling reported in Unnikrishna Menon v. Ramakrishna Pillai ( 1971 KLT 171 ) the lower court held that the decree holder had the option to execute the defaulted instalments but he was not obliged to execute the decree piece meal until be was permitted to execute for the entire amount. Although that ruling was rendered while considering Art.182 of the Limitation Act, the reasoning squarely applies for a payment under S.11(3) of Act 31 of 1958 also. Subramonian Poti, J., as he then was. relied on Ahammad v. Achutha Menon ( 1964 KLT 592 ), Velayudhan v. Gokulan ( 1964 KLT 600 ) and Kunhimutty v. Moideenkutty ( 1968 KLT 580 ) in entering the finding that the decree holder was not obliged to execute the decree piece meal and it should be deemed that he was prohibited from executing the decree until be was permitted to execute for the entire decree amount. In Sree Bank Ltd. v. S.D. Roy And Co. ( AIR 1966 SC 1953 ) the Supreme Court was only considering an objection regarding the execution of a decree for the instalments due after the Presentation of the winding up application, on the ground that the provisions of sub-section (1) of S.450 of the Banking Companies Act applied only to such suits the cause of action for which accrued before the relevant date i.e. the date of the Presentation of the application for winding up. The Supreme Court held that S 45-0 would not revive the debts which were already barred. In view of the fact that the Supreme Court was considering the period of limitation for an instalment decree with a clause making the entire amount due on default of the judgment debtor to pay any one instalment and in view of the fact that in S.11(3) of the Act there was no such default clause, I do not think that the ruling is applicable to the facts of this case.