MISRI LAL Vs. BUDHRAJ

JUDGEMENT

(1.) THIS is an execution second appeal by the decree-holder against an appellate order of the Civil Judge, Beawar, holding that the execution application was barrea by limitation.

(2.) AN instalment decree for Rs. 1,643-12-9 was passed against the judgment-debtor on 3-12-53. The amount was payable in instalments of Rs. 20/- per month commencing from 15-1-54. In default of payment of any two instalments the whole amount was to become payable in lump sum. The present execution application was filed on 24-5-57 for recovering the balance due on that date on the allegation that the judgment-debtor had paid all the instalments due upto 152-57 amounting to Rs. 760/- and had committed a default in the payment of three successive instalments falling due on 15-3-57, 15-4-57 and 15-5-57 respectively. The judgment-debtor filed an objection in which he alleged that he had not paid any amount and contended that the execution application was barred by limitation. Both the Courts below have come to the finding that the instalments were paid by the judgment-debtor amounting to Rs. 760/-on the dates alleged by the decree-holder. The executing Court held that the application was within time. But the appellate Court held that it was barred by limitation, on the ground that the instalments which fell due on 15-3-54 and 154-54 were not paid in time, that the balance due on 15-4-54 became recoverable on that date and the present execution application made on 24-5-57 was barred by limitation under Article 182 (7) as it was made more than 3 years after 15-4-54. Having heard the learned counsel for the parties I am satisfied that the decision of the appellate court is erroneous and that the execution application is within time. I may here refer to my decision in Heera Lal v. Deep Chand, Ex. Second Appeal No. 14 of 1959 D/- 21-7-1961 in this connection. There is conflict of judicial opinion about the article of Limitation Act which is applicable to the execution of an instalment decree with a default clause. So far as a suit based on instalment bond with default clause ts concerned it is governed by Article 75. The period of limitation is 3 years and time begins to run

(3.) SO far as a suit based on an instalment bond with a default clause is concerned there is express provision in Article 75 laying down that time begins to run when the default is made unless the benefit of the provision is waived by the creditor. There is no similar provision contained in any article of the Limitation Act governing tne execution of decrees. Some High Courts took the view that the principle underlying Article 75 is applicable to the execution of instalment decrees with a default clause. Others were opposed to importing the provision of Article 75 into Articles 182 or 181 governing execution of decrees which did not contain any such provision. Now all the High Courts with the exception of the Bombay High court have wared round to the view that the application for entorcement of the payment of the instalments which tall due within 3 years of the application will not be barred though the application for the enforcement of the default clause may be barred. The Bombay High Court held in Chunilal Motiram v. Shivram Naguji, AIR 1950 Bom 188 (FB) that an application for the execution of the decree made after 3 years from the date of the earliest default will be barred not only with reference to the default clause maxing the whole amount payable but also with reference to the instalments so that even the instalments which fell due within 3 years of the application cannot be recovered unless the default has been waived by the decree-holder, with all respect I am unable to subscribe to this view. I am in agreement with the view taken by the majority of the High Courts.