LAKSHMI NARAYAN KHATRI Vs. GOPAL LAL PATHAK

JUDGEMENT

(1.) THIS is an appeal by the decree-holder who is aggrieved by the decision of the learned Sudordinate Judge of Gaya, dated 20 November 1940, by which he has held that the decree which was sought to be executed had become time-barred. On 16 January 1928, a consent decree payable by instalment was passed in favour of the appellant. The instalments were to be paid in Chait and Asin each year. The first instalment was paid in February 1928 but the second instalment was not paid. Thereafter the decree-holder proceeded to execute the decree on 20 August 1929, for the entire amount due. In the course of this execution a consent order was again passed in December 1931 by which the parties arrived at a fresh arrangement by fixing the amount which then remained due payable as fresh instalments. On 20 November 1939, after the decree-holder had failed to realise the amounts due on the previous executions which he started, he asked for the arrest of the judgment-debtor; but as this proved infructuous, he, on 16th January 1940, made an application that certain properties of the judgment-debtor may be attached, but unfortunately this application was not verified. The decree- holder filed a verified application on 2 March, 1940. The judgment-debtor took the objection that this application for execution was barred by limitation inasmuch as 12 years had expired from 16 January 1928, the date of the decree. THIS objection found favour with the learned Subordinate Judge hence the appeal to this Court.

(2.) IT is clear to my mind that by the provisions of Section 48(1)(b), Civil P.C., the present execution was within time. That Clause provides that where the decree directs any payment of money at a certain date or at recurring periods, the date of the default in making the payment in respect of which the applicant seeks to execute the decree, will be treated as the starting point of limitation to calculate the twelve years provided by Sub-section (1). In this case the default took place in Asin of 1928. Therefore, the present application, which was filed on 2 March, 1940 was within time as provided by Section 48(1)(b). But the learned advocate for the respondent relied upon the case in Pandurang Vishwanath V/s. Mahadeo Vishweshwar A.I.R. 1931 Bom. 263. The facts of that case however were peculiar and entirely different. In that case the decree provided that the principal amount together with interest was re- payable within 12 years of the decree and in default the immovable property was to be sold after 12 years. The decree also provided that the interest was to be paid every year and in ease of default in payment of any two years interest the plaintiff was given an option to execute the decree at once. The decree was dated 26 January 1912. On 23 January, 1917 when the first two instalments of interest were in default the decree-holder filed, an application for execution of the entire decretal amount by the sale of the property which, as already observed, was to be sold after 12 years. That application was not pursued, and more than three years after it in 1920, he filed another application to which objection was taken on the ground of limitation and this was also struck off. He then filed an application in June 1926 for execution of the decree. Madgavkar, J. held that by the course adopted by the decree- holder he had not elected to continue to treat the decree as an instalment decree because if he had done so and waited till the entire period of 12 years it would be difficult to say that t time began to run from the date of the first default of instalment. But the question did not arise because the deoree-holder has elected and applied in two darkhasts to recover the entire amount; in other words he has treated the instalment decree as at an end and the entire amount repayable as early as 1917. If so, on the authorities as they stand, and for the reasons stated above, the present darkhast is barred by limitation both under Art. 182, Clause (7), Limitation Act, and under Section 48, Clause (1), Civil P.C. 4. Under Art. 182, Clause (7), time would begin to run from the date of the payment which the decree directed him at a certain date. IT seems to me that this decision, if I may say so, was correct by applying Art. 182(7). The decree which was sought to be executed was not alive by reason of the fact that the application of 1917 was not pursued and more than three years had elapsed when the second application was filed which also was allowed to be struck off when objection was taken on the ground of limitation and the next application filed in 1926 was also beyond three years of the application of 1920. No reference is made or could be made in this decision to the provisions of Section 48(1)(b) which as I have shown directly apply in the present case. 5. For these reasons, I am of the opinion that the learned Subordinate Judge was in error in holding that the execution was barred by limitation. His order is set aside and the execution case restored. The execution case will now proceed from the stage at which it had reached when learned Subordinate Judge passed the order which is being set aside. The appellant is entitled to his costs here and in the Court below. Harries, C.J. I agree.