AMAR NATH Vs. SULEMAN & ORS.

JUDGEMENT

(1.) This case has been referred to Full Bench on account of the importance of the point involved in the case. This was plaintiff's revision against the decree of the lower Court dismissing his suit. The suit was on a bond to recover as. 78-8-0 for balance of the money due on account of 13 instalments. Under this bond the first instalment of Rs. 5-2-0 was to be paid in Magh, 1989, and the second instalment of Rs. 6 in Har, 1990. Subsequently instalments of Rs. 6 each were to be paid in Magh and Har each year.

(2.) The plaintiff's case was that the instalments up to Har, 1995, had been paid and default in payment was made in the instalment due in Magh, 1995. The lower Court found that no instalment had been paid and the suit was time-barred and dismissed the suit.

(3.) It was contended on behalf of the applicant that under Art. 104 of the Limitation Act the plaintiff could bring a suit for some of the instalments which were within time. The first question for consideration, therefore, is which article would apply to the suit. Art. 104 applies to simple bonds or promissory notes payable by instalments, in. which case time begins to run from the expiration of the term of payment. Art. 105 applies to suits on promissory notes or bonds payable by instalments, which provide that if default be made in payment of one or more instalments, the whole shall be due. It is intended to apply to the particular case of instalment bonds where there is a default clause of the nature afore-mentioned. If there were no such default clause, then Art. 104 would apply.