HANMANT BHIMRAO KALGHATGI Vs. GURURAO SWAMIRAO KULKARNI

JUDGEMENT

(1.) THIS is a second appeal, which comes before me on a reference occasioned by a difference of opinion between Mr. Justice Divatia and Mr. Justice Macklin, raising this question: Whether on the terms of the decree under execution the installment decree came to an end after the decree-holder unsuccessfully exercised his option in the first darkhast to recover the whole amount?

(2.) THE facts giving rise to the question are these. On February 26, 1927, there was a decree for Rs. 1,850, payable by annual installments of Rs. 300 each, the first installment being due on May 31, 1927, and subsequent installments on May 31 in succeeding years, and there was a default clause providing that if the defendants failed to pay duly any one installment, the plaintiff should recover forthwith the whole of the remaining amount and further interest by sale of the mortgaged property at his pleasure. THEre was default in payment of the first installment, and on) July 1, 1929, the decree-holder issued a darkhast for recovery of the whole amount due on the decree. On June 2, 1933, that darkhast was disposed of for lack of bidders. On September 2, 1937, the present darkhast was issued for recovering payment of the installments due under the decree during the three years preceding the date of the darkhast.

(3.) MR. Justice Macklin relied upon a recent case in the House of Lords, United Australia, Ld. v. Barclays Bank, Ld. [1941] A.C. 1. But I venture to think that the learned Judge has not observed the warning uttered by Lord Atkin in the course of his very learned and interesting judgment (page 29): It seems to me that in this respect it is essential to bear in mind the distinction between choosing one of two alternative remedies, and choosing one of two inconsistent rights.