AMRIT KHANDERAO KANGO Vs. GOVIND RAMCHANDRA CHITNIS

JUDGEMENT

(1.) In this case a decree was passed in favour of the plaintiff on the 12th February 1894. It directed that interest should be recovered at the rate of Rs. 262-8-0 per annum before the 31st of May every year from 1892, and that the principal amount Rs. 7,001 should be recovered in twenty-five years. It further directed that if the judgment-debtors obstructed the judgment-creditor in attaching the cash allowance till his principal was paid or obstructed the judgment- creditor in getting his interest every year till the principal was paid or obstructed him in any other way or if the judgment-creditor did not get the interest every year from the judgment-debtors, the judgment-creditor" should recover the whole amount, principal and interest, with interest at 3 3/4 per cent, by sale of the mortgagee cash allowance. The judgment-debtors made default in payment of annual instalments of interest. Execution was taken out, and it appears that Rs. 171-2-6 had been recovered in 1303, and Rs. 165-0-3 in 1908. A, Darkhast was issued in 1909, but that was struck off without anything being paid. Again in 1914, the decree having been transferred to the Nasik Court for execution, a Darkhast was issued, but as no money was lying in the office of the Mamlatdar of Niphad the Darkhast was dismissed on the 17th July 1914. It was never up-to that time suggested that the judgment creditor was barred from executing his decree because he had not taken advantage of the default clause. The present Darkhast was issued in 1916 praying for execution for the whole amount, principal and interest.

(2.) The Darkhast was dismissed by the trial Judge on the ground that the principal had not become due, that only 3 years interest was recoverable, but that had not been claimed. The Judge said that the parties were at liberty to open the whole contentions again if the judgment-creditor filed a new Darkhast, and if it was filed, in the Court s opinion, for a proper amount. The judgment does not appear to be consistent,. nor does it appear whether it proceeded on the same argument as found favour with this Court in the case of Raichand Motichand v. Dhondo Laxuman (1918) 42 Bom. 728. It does not seem that the Judge was of the opinion that the judgment-creditor was barred entirely from executing the decree because he had not taken advantage of the default clause. He merely said that the principal had not become due, and it was open to the judgment-creditor to execute for the interest so far as the law of limitation allowed him.

(3.) Now it is quite possible that on the facts of a particular case the judgment- creditor may be barred, if it is considered by the Court that he was barred from executing his decree because on a default being made in the payment of an instalment under the decree, he had not executed for the whole amount within three years under the power given to him by the decree. But I think there may be cases, and I think this is one, where the parties may agree either directly or indirectly that although default has been made in the payment of an instalment, still the judgment-creditor would not be bound to execute for the whole amount within the time-allowed by the law of limitation. Instead of that it is-open to the parties to agree that the instalment should; be taken as having been paid, and if future default were made execution should, issue for the instalments from the date of such default in arrears. Now this is what appears to have been done by the parties in this case,.. Execution proceedings were taken from, time to time in - order to get payment of the instalments of interest directed to be paid by the decree. It was never suggested, although defaults appear to have been made from the very commencement, that after three years from the date of the first default, as no execution proceedings had been taken for the whole amount, the judgment- creditor was absolutely barred from executing his decree, and until 1914 the parties proceeded on this footing that the judgment-creditor was executing as far as possible for the instalments, and was not attempting to take advantage of the clause which enabled him to execute for the whole amount, and that was agreed to by the judgment-debtor. Clearly in 1914 it was open to him to take the point that execution was barred absolutely. Instead of doing that, he only took the objection that execution could not proceed because there were no assets in the Nasik Court which could be paid out under the Darkhast. Therefore I think it was open in this case to the judgment-creditor to treat all the instalments previous to the last one, before the Darkhast of 1916 was issued, as having been paid, and then to consider that the default in payment of the last instalment entitled him to proceed to execute for the whole amount, that is to say, the principal amount and the last instalment of interest which had not been paid. It would then be open to the judgment-debtor to say, "you have agreed in the past to waive the default clause, and only to execute for the instalments until the twenty-five years are up when the principal amount of Rs. 7,001 becomes due. But that contention has not been raised. All that I can gather from the previous conduct of the parties is that it was conceded that the judgment-Creditor should not be barred absolutely from executing the decree merely because he had sought to execute the decree for the instalments in arrears. It seems to me that it was open to him after 1914 when continued default in the payment- of interest was made to take advantage of the decree and execute for that instalment which was in arrears and for the principal amount. To that extent I should allow the appeal with costs in proportion. The cross-objections are dismissed with costs. Heaton, J.