SHEONANDAN SINGH Vs. MAHABIR SINGH

JUDGEMENT

(1.) This is a miscellaneous second appeal by the decree-holder whose execution case filed on 15-3-1958, has been held to be barred by limitation. The decree was obtained on 23-2-1953, for a sum of Rs. 2,500 and odd and an instalment decree was passed. It was also provided in the decree -- "In case of default of any instalment the plaintiff is entitled to execute the decree for the unpaid balance ....." The first instalment was to be paid on 28-3-53; and the second on 23-2-54; the third on 23-8-54; the fourth on 23-2-55; the fifth en 23-8-55; the sixth on 23-2-56; the seventh on 23-8-56 and the last and the eighth instalment was to Be paid on 23-2-57. On the findings, it is clear that only the first instalment was paid but the subsequent instalments were not paid. It also appears that the decree-holder filed execution Case No. 63 of 1958 on 26-2-1958, claiming the entire balance of the decretal dues, i. e., the amount which was to be paid by the seven remaining unpaid instalments. Two days later, he filed an application stating that the judgment-debtor had deposited the first Instalment-money which the decree-holder had already withdrawn and that he had paid the second, third and the fourth instalments due on 23-2-54, 23-8-54, 23-2-55, for which the decree-holder had already granted receipts to the judgment-debtor but by mistake the decree had been put into execution for the whole of the decretal dues. The decree-holder, therefore, by an application asked the executing Court to note these payments of three instalments and to dismiss execution case No. 63 of 1958. It appears from exhibit 1, order dated 28-2-1958, passed in that execution case (63 of 1958) that referring to the statement made by the decree-holder in his petition dated 28-2-1958, the following order was passed :

(2.) The first point which was argued in the Courts below on behalf of the judgment-debtor was that in view of the default clause in the decree (which I have quoted above), the only remedy of the decree-holder was to execute the decree within time in default of the second instalment which was to be paid on 23-2-1954. That is to say, the decree-holder's remedy to execute the decree for the balance of the seven instalments was barred by limitation on 23-2-1957. This point was sought to be replied on behalf of the decree-holder by referring to certain decisions of this Court as well as of other Courts taking the view that if the default clause is not mandatory in nature the decree-holder has a right to realise the amount of the instalment-decree as and when the instalments fall due; and it was further contended that the default clause in question was not mandatory in nature. The Courts below have not specifically answered this question but have defeated the decree-holder on the ground that, even assuming his contention to be correct, the position of law is that the decree-holder has got an option in the matter, either to rely upon the default clause and exercise his right there-under or to execute the decree relying upon Clause (7) of Article 182 of the Limitation Act for realisation of the amount of the various instalments as and when they fall due. And in the instant case the Courts below have come to the conclusion that by filing the execution case on 26-2-1958, the decree-holder exercised his option of executing the decree for the whole of the amount in exercise of his right based upon the default clause and, that being so, he cannot be now allowed to file another execution case and take recourse of Clause (7) of Article 182.

(3.) Since I am differing with the decisions of the Courts below in regard to the second question, it is necessary for me to express my opinion in regard to the first point which has been canvassed before me by Mr. K. K. Sinha appearing for the judgment-debtor-respondent. In the case of Monindra Nath v. Kanhai Ram, 4 Pat LJ 365: (AIR 1918 Pat 95) the decree provided that in the event of default being made in the payment of any one of the instalments the balance remaining unpaid should immediately fall due and be forthwith recoverable. Even in face of this clause, it was held by the Bench -- "Therefore unless the decree clearly leaves the decree-holder no option on the happening of a default but to execute the decree once and for all For the whole amount due under it; the decree-holder may execute it on the happening of the first, second, or any subsequent default; and limitation will run only against him in respect of each instalment separately from the time when each such instalment may become due and payable." This view following 4 Pat LJ case (4 Pat LJ 365 : (AIR 1918 Pat 95)) has been reiterated in the case of Braham Kishun Narain Deo v. Harihar Munder, AIR 1932 Pat 253. In that case also the decree seems to have provided that the decree-holder was entitled in the event of default to treat the whole debt as immediately payable. The matter has been fully discussed, if I may say so with respect, in the case of Ranglal Agarwala v. Shyamlal Tamoli, a Full Bench decision of the Calcutta High Court, AIR 1946 Cal 500. There the different phraseologies providing such contingencies in instalment decree have been referred to, e. g., "shall become due", "shall become payable" or "shall become realisable", "shall have the power to execute the decree for the whole amount" or "shall have the liberty" etc., and with leference to such expression the earlier Calcutta view holding otherwise has been dissented from and the view of the Full Bench is "Such a provision in our view, must, whenever possible, be construed in favour of the decree-holder whose right to get immediate payment has once been interfered with by the order for instalments and the correct way to construe it is to hold in favour of an option, unless, the language used in the decree clearly bars it." Relying upon this principle of law, I hold that the expression "In case of default of any instalment the plaintiff is entitled to execute" the decree in question is an optional clause, giving an option to the decree-holder to execute the decree for the unpaid amount relying upon the default or to wait to realise his dues under the various instalments as and when they fall due.