HARI PADA MAHAPATRA Vs. HARI CHARAN JAMUDA

JUDGEMENT

(1.) This second appeal and the application in revision have been heard together and will be governed by this judgment.

(2.) The short facts are these. The plaintiff, who is the appellant in the second appeal and petitioner in the application in revision brought a suit for recovery of money on the basis of an instalment bond. The instalment bond, with which we are at present concerned, was executed on the 21st of June, 1943. The instalment bond was executed for the repay-ment of a previous loan of Rs. 700/-. The debtor stipulated in the bond that he would pay the loan in six-monthly instalments of Rs. 50/- on account of principal and Rs. 4/- on account of interest. The instalments were to be paid in the months of December and June, and the first instalment was to be paid in December 1943. There was a clause in the instalment bond to the effect that, in case of default of two consecutive instalments, the whole amount would become due and recoverable by suit. The admitted position is that two payments only were made by the debtor, one of Rs. 50/- on the 9th May 1944, and the other of Rs. 55/- on the 3rd August 1945. The first payment of Rs. 50/- made on the 9th of May 1944, was appropriated towards the first instalment due in December 1943. The second payment made on the 3rd of August 1945, was appropriated towards the second instalment due in June 1944. The suit was brought on the 1st of July 1948, and the claim was for the instalments beginning from June 1945 till June 1948. The question that arose for consideration in the courts below was whether the claim was barred by time. The courts below concurrently held that the claim was barred by time.

(3.) So far as the second appeal is concerned, it is conceded by learned Counsel for the appellant that no second appeal lies by reason of the provisions of Sec. 102, Code of Civil Proce- dure. The second appeal must, therefore, be dismissed on the preliminary ground that it is incompetent.