KANTILAL JESINGBHAI SHAH Vs. AMRATLAL MANSUKHRAM SHAH

JUDGEMENT

(1.) THIS is an appeal from a decision of the District Judge of Ahmedabad upholding the decision of the Subordinate Judge. The question raised is a point of limitation on which there seems to be no authority .

(2.) THE plaintiff's claim is based on a consent decree passed on March 29, 1930. In my opinion the question raised depends on the true construction of that decree, and I will refer later to its exact terms, after discussing the facts which give rise to the question; but stating it shortly, the decree directs payment of Rs. 1,672 odd, the amount to be payable by instalments of Rs. 22-8-0 each per month, and the peculiar feature of the decree is that there is no default clause providing that if any instalment, or stated number of instalments, be in arrear, the whole amount due shall become payable. THE' only penalty for non-payment of an instalment on the due date is that it is to carry interest. I am told that if the decree had been worked out according to its terms, it would have involved payment of seventy-six instalments, and the last instalment would have been payable on September 15, 1936. From time to time instalments were paid and the several payments were endorsed on the decree, and signed by the judgment-debtor. Instalments extend from July 1980, to August, 1937, and, attributing the payment of each instalment to the earliest of the instalments then due there was at no time an instalment which was three years in arrears. Now both the lower Courts have held that the case' is governed by Article 182, paragraph 7, which provides that for the execution of a decree of any civil Court, where the application is to enforce any payment which the decree directs to be made at a certain date, the period allowed is three years from such date. So that I agree with the lower Courts that in the case of each instalment limitation runs from the due date for the payment of that instalment, and if an instalment was allowed to become three years in arrears, that instalment would be barred, and s, 20 would not operate upon it. But it is argued for the appellant that the effect of Section 20 is that every payment of an instalment is a part payment of the debt due under the decree, and therefore starts a fresh period of limitation in respect of all instalments then due, and not already barred. Section 20, so far as material, provides that where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made THE lower Courts have rejected that argument and have held that each instalment must be dealt with separately, and it must be recovered within three' years from the of the debit due under the decree, and therefore starts a fresh period of limitation in respect of all instalments then due, and not already barred. Section 20, so far as material, provides that where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or due date and the payment of another instalment has no operation upon it. That really involves holding that the decree constitutes seventy-six separate debts, each instalment being a debt, and if that is so, no doubt the lower Courts are right in their decisions. THE payment of one instalment, that is to say of one debt, cannot have any effect upon the right to recover another debt. But on the other hand if the whole debt under the decree is one, then it seems to me that every instalment paid is a part payment of that debt, and operates to create a fresh period of limitation from the date of the payment of the instalment in respect of the whole amount of the debt then due and not statute barred. THErefore the question turns, to my mind, entirely on the construction of the consent decree, the question being whether that decree creates a single debt payable in seventy-six separate instalments or creates seventy-six separate debts.