KASHIRAM Vs. PANDU

JUDGEMENT

(1.) From the dates on which the several instalments were paid it, appears that, though certain of them were paid after the date of which they were properly due, at no time up to 1895 did any single instalment remain unpaid at the date when that immediately succeeding it accrued due. This might serve to distinguish the present case from the decision in Dulsook v. Chugon Narrun (1877) 2 Bom. 356; bat I desire to place my decision on broader grounds, believing that thereby a solution of the difficulty attending instalment decrees will be furnished, which will be more easily apprehended by the mofussil Courts, than if I limited myself to the refinement which the distinction above referred to would involve.

(2.) Though the decree is equivocal on the point, I will assume, as most in the defendant's favour that on two successive defaults the instalments thenceforth ceased, and the plaintiff was relegated to his right to recover the balance of the decretal sum by taking possession. And yet we find that after the default on which the defendant relies, instalments were paid by the judgment-debtor and accepted by the decree-holder; that though the first and second instalments were late, the third was paid within time; and that while the fourth to the seventh were beyond time, the eighth instalment was paid and accepted within the prescribed period.

(3.) In April, 1895, therefore, every instalment then due had been paid, and there were no arrears, so that, if limitation be reckoned from defaults after that date, the present application is within time. Must we, notwithstanding this, hold that the plaintiff is barred because his right to recover possession arose on the defendant's previous failures to make punctual payments?