CHUNILAL MOTIRAM Vs. SHIVRAM NAGUJI GHULE

JUDGEMENT

(1.) THE question referred to this Full Bench is whether in case of an instalment decree providing that on the failure of payment of certain instalments the whole amount due may be recovered, the decree-holder is entitled to exercise his option to recover the whole amount then recoverable, notwithstanding that the first default may have occurred more than three years before the filing of the execution application.

(2.) THE facts giving rise to the raising of this question may be briefly stated. An award decree was passed on 14th August 1931. THE decree was for Rs. 6,800 and it provided for payment by annual instalments of Rs. 1,000 with interest; the first of such instalments was made payable in March or April 1932 and each subsequent instalments on the succeeding March or April of every year. It was also provided that in default of payment of any two instalments the plaintiff's might recover the whole balance that would remain over after deduction of payments received in one lump sum by sale of the mortgaged property. A sum of Rs. 1,195 was paid by the judgment-debtor on 24th November 1931. A further sum of Rs. 1260 was paid on 14th November 1932, On 17th April 1933, a sum of Rs. 105 was paid by the judgment-debtor. On 5th October 1936, the decree-holder filed a darkhast claiming that in view of a default in payment of instalments the whole decretal amount bad become payable and claiming that amount. That darkhast was dismissed for non-prosecution on 2lst December 1936. A further darkhast was filed on 15th November 1938, and the executing Court held that the darkhast was barred by limitation.

(3.) THERE are certain decisions of this Court which though, as I have pointed out earlier, not directly in point, throw some light on the question that we are considering. We would first look at the authority of Hanmant Bhimrao v. Gururao Swamirao, 44 Bom. L. R. 880: (A. I. R. (30) 1943 Bom. 36 ). In that case Sir John Beaument, who delivered the judgment, on there being a disagreement between Divatia and Macklin, JJ. laid down that on a default taking place the decree holder becomes entitled to two rights which are inconsistent, and those two rights are that he could continue under the decree to recover the amount by instalments, or he could recover the whole amount at once, but he could not do both. The learned Chief Justice points out that if the decree-holder elects to take his stand on one of these two rights, he then cannot fall back upon the other right. If he chooses to execute the decree for obtaining the full amount due under the decree, then he could not execute the decree for the instalments due under the decree. But the only importance of this case is that there is the observation of the learned Chief Justice which goes to show that in his opinion two inconsistent rights accrued to the decree-holder as soon as the default was made. It is that moment of time which gives rise to the creation of the two rights in favour of the decree-holder. Then there is one other judgment of this Court Veherbhai v. Javer Soma, 37 Bom. L. B. 942: (A. I. R. (23) 1936 Bom. 17), to which also Sir John Beaumont C. J. was a party. IN this judgment what is emphasised is that notwithstanding the default made by the judgment-debtor it was open to the decree-holder to treat the decree as an instalment decree. This emphasises the fact that it is for the benefit of the decree-holder that the provision is made in the decree that he could execute the decree for the full amount if there is a default in the payment of any instalment, and that aspect of the case was again emphasised by another Division Bench of this Court in Bomatu v. Goverdhandas, 38 Bam. L. R. 492: (A. I. R. (23) 1936 Bom. 269 ). But it is significant to note that in that case, Broomfield J. who sat with Wadia J. and delivered the judgment of the Court, points out at p. 498 that on any view the claim to recover the whole amount of the debt on default of payment of one or more instalments must be barred within three years of the default either under Article 182 or Article 181, Limitation Act.