SYED ASRAR AHMED Vs. BHANWAR LAL

JUDGEMENT

(1.) THIS is a civil execution second appeal against the judgment dated 26 -4 -1973 passed by the learned Additional District Judge, Ajmer in Civil Execution Appeal No. 324/70(33/72) setting aside the order dated 1 -8 -1970 passed by the learned Civil Judge, Ajmer in execution case No. 29/69.

(2.) FOR the decision of this appeal it is not necessary to give all details of the facts, out of which the present proceedings have come up Suffice it to say, by an order dated 1 -8 -1970, it was held by the learned Civil Judge that the execution preferred by the decree holder Ram Das was barred by limitation. Against this order an appeal was preferred before the District Judge Ajmer, which, on transfer was decided by the learned Additional District Judge. Ajmer, by its order dated 26th April, 1973, by which it was held that the execution preferred on 21 -3 -1969 is perfectly within limitation. The proceedings have arisen from a decree through compromise. The terms of compromise were that the suit of the plaintiff was to be decreed against the defendant for Rs. 3104/ - and 5 Annas and 3 Paisa. which was made payable in the yearly instalments of Rs. 500/ - with future Interest at the rate of 9% per annum. The first instalment was payable on 15 -3 -1965 and the subsequent yearly instalments were to be paid on 15th March every year and if two instalments fell in arears, the remaining whole amount of the decree was payable in lump -sum. Out of every instalment, the amount was first to be adjusted towards interest and the remaining amount was to be adjusted towards principal.

(3.) LEARNED Counsel for the respondent Shri Dhingra on the other hand has urged that as per the compromise the whole of the amount could have been realised, if 2 instalments fell in arrear. He has stated that the first instalment of March, 1955 was paid in time on 7 -3 -1955. The instalment for the month of March, 1956 even though not paid in time, was paid after a fortnight, i.e., before the 2 instalments fell in arrear. This amount of second instalment was paid and accepted by the decree -holder. He has, therefore, urged that in this way, the decree holder waived the default committed by the judgment debtor. Similar is the position regarding instalment of March, 1957, which was paid and accepted on 26 -4 -1957 by the decree holder. Therefore, it has been urged by the learned Counsel that when in the month of June, 1958, the execution was preferred for realising the whole amount, it will be seen that 2 instalments were not in arrears at any time, therefore, the execution was withdrawn by the decree -holder. It has been further stated that the above execution was not even brought to the notice of the judgment debtor as it was not pressed and withdrawn. Therefore, it has been urged that on the basis of the execution application filed in the month of June, 1958, it could not be held that the decree holder exercised the option to implement the default clause as the same could not have been implemented in June, 1958 because no two defaults had been made in payment of instalments. In such a position, the decree holder can realise the subsequent instalments as they become due as it does not cause any prejudice to the appellants. It has been further urged that the instalments of March, 1958 and March, 1959 fell in arrears on 15th March, 1959, but the respondent decree -holder accepted the payment of Rs. 500/ - on 29 -3 -1959. Therefore, the acceptance of this amount was clearly waiver of the exercise of default clause on that day day by the decree holder and only one instalmeat remained in arrears at that time. Thereafter, the decree holder accepted two more instalments in the month of January, 1961 that fell in arrear in March, 1960. Therefore, since these instalments were accepted, it clearly indicates that the decree -holder waived the exercise of option of default clause by acceptance of the amount of instalments in January, 1961. It has been further urged that thereafter, 2 instalments fell in arrear by March, 1962, therefore, the decree holder -respondent was entitled according to law to put the decree in execution on the basis of default clause in the compromise and such execution could have been filed under Article 136 of the present Limitation Act upto 1974. This application has been filed on 21 -3 -1969 and thus, this application is well within the limitation.