HARAKH NARAIN Vs. KALWATI

JUDGEMENT

(1.) THIS second appeal arises out of proceedings for execution of a decree obtained by the deeree-holders-respondents against the judg-ment-debtor-appellant on 23-8-1933. The decree was for money. An amendment of the decree took place on 2-7-1936 and there on 6-1-1937, there was an adjustment. After this adjustment the amount remaining due under the decree was rs. 678-4-6. At that time, the decree was converted into an instalment decree and it was laid down that the amount must be paid in ten instalments, the first nine instalments being of Rs. 67 and the tenth one of Rs. 75-4-6. The instalments were to fall due on 31st December of each year so that the first installment of Rs. 67 fell due on 31-12-1937. There was an additional clause that in case oil default in payment of three instalments, the entire amount then unrealised under the decree was to become due. It is the admitted case of the parties that not a single instalment was paid so that three defaults had been committed by 31-12-1939. The first application as a step in aid of execution was presented to Court on 15-12-1944. But in that application, the only prayer was that the decree-holder having died, his daughters might be substituted as his legal representatives in the decree. That application was allowed and substitution of names was granted. Tho present execution application was present, ed on 23-11-1945, with the request that the entire amount under the decree might be realised by attachment of the property of the judgment-debtor, claiming that the entire amount had fallen duo because of default of payment of three instalments. On 7-1-1946, an objection was filed by the appellant contending that the application for execution was barred by time. The objection relating to the limitation for execution for the whole amount under the decree under the default clause was upheld by both the lower Courts, but both, those Courts held that the decree-holders were entitled to execute the decree in respect of those instalments which had fallen due within three-years preceding the date of the application, i. e. , within three years of 23-11-1945. They further held that the amount of the instalments which had not yet fallen due on 23-11-1945, could not be realised in this execution as the execution application in respect of those instalments was premature. The decree-holders have submitted to this order passed by the lower appellate Court, but the judgment, debtor has come up in appeal contending that the whole execution is time-barred and the execution application should have been dismissed in toto.

(2.) THE first contention that has been raised by the learned counsel for the appellant in this second appeal is that since the present execution application was not for realisation of instalments as such but was for realisation of the whole amount due under the decree on the basis of the default clause, the lower Courts should not have allowed realisation of the instalments, even though execution in respect of them might be within time, computing the limitation in respect of each instalment from the date on which that instalment fell due. The decree sought to be executed was only one single decree and was for a sum of Rs. 678-4-6. After the compromise and adjustment of 6-1-1937, it permitted the judgment-debtor to pay the amount in instalments and consequently granted the right to the decree holders to realise those instalments as and when they fell due. A second optional right was given to the decree-holders to realise the whole amount due if there was default in payment of three instalments. Thus the decree gave two alternative modes of realisation of the decretal amount to the decree-holders and as long as the decree-holders applied for execution for the whole amount, it was certainly within the competence of the Courts to permit the realisation of a smaller amount, as the prayer for realisation of the larger amount covers the prayer for realisation of the smaller amount. It is true that in the application, the prayer for realisation was based on the ground that the whole amount of the decree had become due as a result of default in payment of three instalments, but that whole amount was made up of the sum which was payable in nine instalments of Rs. 67 and the tenth instalment of Rs. 75-4-6; and consequently, when dealing with the execution application, the Court could competently break up that amount and allow execution in respect of those items making up the whole amount sought to be realised which the decree-holders could competently realise in this execution application. This preliminary objection that the lower Courts were wrong in treating this application as an application for realisation of the amounts of individual instalments therefore fails.

(3.) A very similar case came up before a Bench of the erstwhile Chief Court of Oudh in Peoples bank of Northern India Ltd. v. Aijaz Ali, 17 Luck. 449. In that case there had similarly been default in paying the instalments and four applications for realisation of the amount were presented in the year 1923. Then again a fifth appli-cation for execution in respect of the whole amount of the decree was presented on 20-4-1937. The Court allowed execution of this fifth application only in respect of the instalments which were within time on 20-4-1937. The view I have taken is thus fully supported by that decision.