ROHAN SINGH Vs. BADRI PRASAD

JUDGEMENT

(1.) ON 31-3-1839 a preliminary mortgage decree was passed in favour of Badri Prasad against rohan Singh. The decree provided that the amount due was Rs. 637/11/- and then directed

(2.) THE learned Munsif rejected the objections of the judgment-debtor on the question of limitation, and directed that a final decree be prepared for the entire amount of the money calculated in accordance with the preliminary decree. Rohan Singh preferred an appeal and the civil Judge of Hardoi modified the preliminary decree passed by the trial Court. He held that the application for a final decree in so far as it related to the instalments falling due more than three years before 13-9-1944 was barred by time and they could not be included in the final decree. He accordingly directed a final-decree to be passed in respect of the last four instalments, i. e. , the instalments falling due on 10-10-1941 and sub-sequent dates. Both parties have come up in appeal.

(3.) IT is contended on behalf of Rohah Singh that it ought to have been held that the whole decretal amount fell due on the failure to pay any three instalments and the right to apply for a final decree arose as soon as there was a failure to pay three instalments with the result that the right to apply for a final decree became barred after the expiry of three years from 1-10-1940. On the other hand it was contended on behalf of Badri Prasad that the decree allowed a choice to the decree-holder either to sell the property on default of three instalments or to wait till a later period before applying for a final decree. In the present case the decision of both these points is covered by a decision of a Bench ot the Chief Court of Oudh reported in -- 'ram Dutta v. Mahpal singh', AIR 1938 Oudh 112 (A), in which it was laid down, after a consideration of the law on the subject including a Full Bench decision of the Allahabad High Court, a Privy Council decision and certain earlier decisions of the Oudh Chief Court that in such a case the final decree would be for the instalments which fell due within three years of the date of the application. This case was followed by a Single Judge of the Allahabad High Court reported in -- 'buttan Singh v. Sakal Raj Singh', AIR 1945 All 161 (B ).