VEHERBHAI VALLAVBHAI Vs. JAVER SOMA

JUDGEMENT

(1.) THIS is an application in revision under Section 25 of the Provincial Small Causes Courts Act asking us to review an order of the Second Class Subordinate Judge at Borsad, dismissing a darkhast proceeding.

(2.) THE case raises a point of law upon which there has been considerable difference of judicial opinion, as noted by the learned Subordinate Judge. THE point is a very simple one. THEre was a decree dated February 13, 1930, providing for payment of the decretal amount by three instalments, in October, 1930, October, 1931, and October, 1932, and there was a provision in the decree that if the defendant failed to pay any one instalment, plaintiffs might recover the whole debt at once by executing the decree. Default was made in the payment of the first instalment, and darkhast proceedings were filed on October 2, 1934. Admittedly the first instalment is time-barred, but the darkhast is within three years of the due date fixed for payment of the other two instalments, and the question is whether in view of the default clause in the decree all the instalments became payable at the expiration of October, 1930, so that the darkhast is time-barred. That was the view adopted by the learned Subordinate Judge.

(3.) THE learned Subordinate Judge in a careful judgment considered the ruling of the Privy Council, but came to the conclusion that he was bound by the decision of this Court (Ratehand v. Dhondo (1918) 20 Bom. L. R. 773), to hold that time ran from the date of the default in payment of the first instalment. That was a decision of Mr. Justice Beaman and Mr. Justice Heaton. THEy differed from the decision in Shankar Prasad v. Jalpa Prasad (1894) I. L. R. 16 All. 371, in which it had been held that under a decree for payment by instalments with a default clause, the occurrence of a default did not make the whole debt payable immediately so that time ran from that date in respect of the whole debt. I must confess that I find the reasoning of the learned Judges in Raichand v. Dhondo very difficult to follow. THE Judges seem to take the view that a creditor who gets a decree for payment by instalments is really entitled to a decree for immediate payment, that the privilege of payment by instalments is inserted entirely for the benefit of, and out of sympathy for, the debtor, and that if the debtor fails to take advantage of the privilege accrued to him, then the creditor has a decree for immediate payment of the full amount. It is difficult to see why, if a creditor is entitled to a decree for immediate payment, he should only get a decree for payment by instalments. I think the correct view is that the debtor must be treated in such cases as entitled to a decree for payment by instalments, and that the clause making the whole amount payable on default in payment of any instalment is inserted for the benefit of the creditor, who has an option to enforce the clause or not. It is to be observed that the learned Judges in Raichand v. Dhondo do not refer to any of the articles of the Indian Limitation Act, and do not mention the article under which they held that the darkhast proceedings were barred. In my opinion it is quite impossible to reconcile the reasoning in Raichand v. Dhondo with the reasoning of the Privy Council in Lasa Din v. Gulab Kunwar, and I think we must follow the latter reasoning.