KRISHNAMURTHY IYER Vs. TIRUPPANGUR SRI SIVALOGANATHASWAMI DEVASTHANAM BY EXECUTIVE OFFICER, S. MAHARAJAN

JUDGEMENT

(1.) IN this appeal an interesting question arises under the Madras Indebted Agriculturists (Repayment of Debts) Act (I of 1955). The question is whether an application for final decree filed more than three years after the first instalment became payable under that Act is barred by limitation. The facts necessary for decision in this case and which are not in dispute are as follows. A preliminary charge decree was passed in this case on 8th July, 1949 and the appellate decree on 10th April, 1953. Various sums had been paid towards the decree amount the last of them being a payment of Rs. 2,500 on 28th February, 1953. The application for passing a final decree was presented on 8th September, 1958, There was an acknowledgment Exhibit A -1 dated 21st January, 1954 and even if this is taken into account, the final decree application is beyond three years from that date. Act I of 1955 came into force on 1st March, 1955 and under it the debt became payable in four instalments the first of such instalments being payable on 1st July, 1955 and the subsequent instalments being payable on 1st July, 1956, 1st July, 1957 and 1st July, 1958 respectively. Act I of 1955 was preceded by Ordinance V of 1953 which came into force on 5th December, 1953 and Act V of 1954 which came into force on 6th February, 1954. Under both these enactments, filing of suits and petitions for execution against agriculturists had been stayed. The result was that a period of one year six months and 26 days upto 1st July, 1952 was deducible in respect of suits and execution petitions that may be filed after 1st July, 1955. That does not apply here because the present petition is one for passing a final decree and not for execution and the date of the appellate decree is 10th April, 1953. When the decree -holder applied for passing a final decree, the judgment -debtor contended that the application having been filed more than three years after 1st July, 1953, was barred by limitation. This contention was overruled and a final decree was passed. The judgment -debtor has preferred this appeal against the order passing a final decree.

(2.) THE argument on behalf of the appellant is that the decree -holder should have applied for passing a final decree within 3 years after the first instalment became payable on 1st July, 1955 and an application for passing a final decree not having been filed within that period of three years, it was time barred. He relied upon Sub -section (2) of Section 4, which lays down that: Where in respect of a decree for debt passed before the commencement of this Act, a debtor fails to make any one of these payments specified in Sub -section (1) the decree -holder shall be entitled to execute the decree in respect of the instalment which is in default. and argued that in this case the preliminary decree itself being unexecutable, the decree -holder should have applied for passing a final decree within three years of the first instalment becoming payable and if he did not do so, the application for final decree would become barred and the decree will become unexecutable. This argument was itself based on the further argument that more than one final, decree for sale cannot be passed. On principle we cannot see why more than one final decree cannot be passed. But for the purpose of this decree it is not necessary to decide that question. It will be noticed that the section itself does not directly apply. This is not a case where as in the case decided in Kashinath Vinayak v. Rama Daji : I.L.R. (1916) Bom. 492 and Suklya v. Suklal Motichand I.L.R. (1923) Bom. 172, the decree itself could be executed" without the necessity of a final decree under the provisions of Section 15 -8, of the Dekhan Agriculturists Relief Act.

(3.) UNDER Sub -section (1) of Section 4 notwithstanding any law, custom, contractor decree of Court to the contrary, an agriculturist shall be entitled to pay any debt due by him in four equal instalments, and under Sub -clause (b) of Section 2 'debt' includes a debt payable under a decree or order of Court. Therefore, notwithstanding' the fact that there was a preliminary decree dated 10th April, 1953, the judgment debtor in this case was entitled to pay the debt in four equal annual instalments beginning from 1st July, 1955. The integrality of the decree thus became split up and the decree -holder could not execute his decree except as and when the several instalments became due. Further the decree -holder would have to obtain a final decree -before he could execute the decree. Whether he applies for a final decree soon after the first instalment became due and the final decree as passed directs the mortgage property to be sold for the recovery of the first instalment, which was payable on 1st July, 1955, and also serially in respect of the other instalments, or whether as in this case, the decree -holder waits till the last of the four instalments became payable on 1st July, 1958 and thereafter applies for a final decree under and the final decree for sale in respect of the amount then payable is passed would not make, any difference. An application for final decree will have to be filed under Article, 181 of the Limitation Act within three years of the preliminary decree. If the judgment -debtor fails to pay the last of the instalments payable on 1st July, 1958 and the decree -holder applies for passing of a final decree, on 2nd July, 1958 or any subsequent date, it would be beyond the period of three years in respect of the first instalment, which was payable on 1st July, 1955. Whatever may be said about the first instalment the application for final decree is within the period of three years as regards the other three instalments. That is the case in the present instance. We cannot accept the argument on behalf of the judgment -debtor that if the decree holder, fails to apply for a final decree within a period of three years of the failure of the judgment -debtor to pay the first instalment, this remedy is barred not merely in respect of that instalment but all subsequent instalments also. As the decree became split up and became an instalment decree the decree -holder could apply for passing of final decree at least in respect of the instalments payable within a period of three years of the date of application for the passing of the final decree. This conclusion of ours is amply borne out by authority. The decision relied upon by the lower Court and reported in Gopal Naicker v. Alagiriswami Naicker : AIR1942Mad581 , is itself in point. In that case a preliminary decree on a mortgage suit was passed in June, 1953 providing for the payment of the mortgage money in seven annual instalments of Rs. 115 each in June, of each year with a default clause that if there were defaults in the payment of any instalment, the decree -holder might then proceed to sell the mortgaged property for the whole amount of the instalments still remaining unpaid and also for the sum of Rs. 262 which he had provisionally relinquished. No instalment was in fact paid either in I954, 1955, 1956 or 1957. On 22nd June, 1938 before the 1938 instalment had become due, the decree -holder filed an application for passing a final decree. The debtor contended that the application was barred by limitation. It was held that every fresh default gave rise to a fresh cause of action as the decree -holder in the circumstances was at no time bound to enforce the penalty and the application for final decree was not barred by limitation. In that case also the application for final decree was beyond three years from the date when the first instalment became payable and the final decree application was only in respect of the other instalments. In the present case also the amount due in respect of the first instalment is not claimed in the application for final decree. This decision was followed by the Allahabad High Court in Uttan Singh v. Sakal Raj Singh I.L.R. (1945) All. 151. That too was a case of a preliminary mortgage decree where the amount was payable in instalments and it was held that the cause of action to apply for a final decree accrued not on the default of payment of the third instalment, but also on subsequent breaches and that the application for final decree was competent and the decree -holder was entitled to have final decree passed in respect of the instalments which became due within three years of the application for final decree. This decision followed the Madras decisions above referred to, as also a decision of the Oudh Chief Court in Ban Dutta v. Harpal Singh A.I.R. 1935 Oudh 112.