KALI CHARAN ROY, SECRETARY TO THE GHATAIL SAMMILANI DHANBHANDAR COMPANY, LIMITED Vs. MOHESH CHANDRA GHOSH

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order of the Court below holding that the application for execution was barred by limitation. The facts are that a decree was passed against the judgment-debtors, made payable by 32 half yearly payments from the year 1319 to the year 1334 B.S. There were, several payments made by the judgment-debtors; but there was default made by them in respect of the instalment due for Magh 1321 (January 1918). On the 23 Aghrayan 1325 (9 December 1918) a portion of the kist for Magh 1324 (January-February 1918) was paid by the judgment-debtors and accepted by the decree- holder. After that no other payment was made and the present application was presented by the decree-holder on the 24 April 1922, for execution for the balance of the decretal amount. Both the Courts below have held that as the application was made more than three years after the date of default of the last unpaid instalment the application was barred by limitation.

(2.) Two points have been urged by the learned Vakil for the appellant on his behalf. The first and the more important contention is that by payment and acceptance of the overdue instalment there was a waiver and the effect of it is that the decree is to be considered as an ordinary decree without the consequence of nonpayment of instalments attached to it. It is also suggested that the waiver may amount to place the decree-holder in a position to realise such instalments as remained unpaid within three years of the application for execution. With regard to the effect of waiver by payment and acceptance of overdue instalments, there is no controversy for the point is settled by a series of decisions. The only point, therefore, that needs considerations is as to the result of this waiver. The learned Vakil for the appellant argues that payment and acceptance of overdue instalments is, tantamount to, giving up the rights of the parties under the terms of the decree and it makes it optional on the part of the decree-holder to claim the amount due under the decree treating such instalment in respect of which default is made as an overdue instalment. In short, his argument is that the waiver in the present case amounts to a modification of the decree in so far as it says that on default being made of any particular instalment the decree-holder will have the option to realise the entire amount. There is a stipulation in the decree that on the failure by the judgment-debtors to pay an instalment the decree-holder will be entitled to take-out execution for the entire amount. We are unable to hold with the appellant that the effect of the waiver is to cause any modification in the terms of the decree. See the observations of the learned, Chief Justice (Sir Lawrence Jenkins) in the Full Bench case of Kashiram V/s. Pandu 27 B. 1 at p. 12 : 4 Bom. L.R. 688.

(3.) His next contention in this connection is that the decree giving option to the decree-holder to take out execution of the entire amount in default of one instalment leaves it at his will either to treat the entire amount due or, to claim each instalment as it falls due as ah overdue instalment. The facts of tins case which have been found by the Court below are that there was no payment by the judgment-debtors after December 1918 and execution having been taken out in 1922 is clearly barred by limitation. The contention, of the decree-holder that it is open to him to treat each instalment as an overdue instalment and take out, execution for it and that he is entitled to the instalments that were payable within 3 years before the application for execution is, in our opinion, without force and in this connection we would refer to several rulings of this Court oil the point. The first case which is one which has been followed by all subsequent cases and lays down the law clearly is that of Hurri Parshad Chowdhry V/s. Naub Singh 21 C. 542 : 10 Ind. Dec. (N.S.) 992. At page 547 Page of 21 C.-- [Ed.] the learned Judges observe as follows: "We cannot hold that mere abstinence from suing can amount to waiver, or that there can be any waiver so as to affect limitation save by payment and acceptance of an overdue instalment. Nor do we think that any distinction can be drawn, as has been attempted in this case to be drawn, between a case in which it is provided that on nonpayment of an instalment the whole amount shall become due, and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. There seems no reason why limitation should begin to run in the one case and not in. the other." This view has been followed in Jadab Chandra Bakshi V/s. Bhairab Chandra Chukerbutty 31 C. 297 and Girindra Mohun Roy V/s. Bocha Das 1 Ind. Cas. 49 : 36 C. 394 : 9 C.L.J. 226 : 13 C.W.N. 1004. The High Courts of Madras and Bombay have also adopted the same view. The Allahabad High Court has taken a different view and is of opinion that when option is given to the decree-holder he may treat either the entire decretal amount as one payable on default of one instalment or he may treat each instalment as it falls due as then becoming payable. This view, however, has not been adopted by this Court. See Hurri Pershad Chowdhury V/s. Nasib Singh 21 C. 542 : 10 Ind. Dec. (N.S.) 992. The result of these authorities is two-fold. First, if the instalment decree provides that the decree-holder will be entitled to sue for or take out execution for the entire; amount, on; default of my one instalment. The entire amount becomes due on such default and time, begins to run from the date of such default. Secondly, the mere fact of the decree-holder not enforcing the right given to him under the bond by attempting to realise the entire amount which falls due on default of one instalment does not in itself amount to waiver for all time to come. Applying these principles to the facts of the present case it appears that apart from the acceptance out of time of part of the Magh kist of 1324 a further default was made at any rate in respect of the all subsequent lasts, and there was no waiver of these kists with the result that time should be counted from the date the next kist fell due and, therefore, this application which was filed in April 1922 must be held to be barred by limitation.