DARUBHAI MITHABHAI Vs. BECHAR DESAI

JUDGEMENT

(1.) The decree under execution as passed by the Trial Court on September 27, 1911, is in these terms: That the plaintiff should pay to the defendant No. 2 Rs. 299 and costs of this suit together with interest thereon at the rate of six per cent. by three equal annual instalments from this day. He should pay the first instalment on March 15, 1912, and he should pay every subsequent instalment on the same date of every year. And until the whole debt is paid off as shown above, the charge of defendant No. 2 will permanently remain on the plaint property. If the plaintiff fails to pay any of the instalments whatever, the defendant No. 2 is at liberty to make an application to the Court under Section 15B, Clause (2) of the Dekkhan Agriculturists Relief Act.

(2.) This decree was subsequently confirmed by the District Court and ultimately by the High Court on October 16, 1914. The appealing party was the mortgagee, the original defendant No. 2, that is the present appellant. After the decree was confirmed by the High Court on October 16, 1914, he presented the application for execution of the decree on July 2, 1918, and according to the statement in the darkhast two payments, one of Rs. 150 and the other of Rs. 50 Avere made on May 15, 1916, a July, 18, 1916, respectively, by the plaintiff to the mortgagee. Execution was sought ill respect of the balance of the three instalments payable under the decree as provided by the decree by an order for sale under Section 15B of the Dekkhan Agriculturists Relief Act. Both the lower Courts have disallowed the application for execution on the ground of limitation.

(3.) According to the terms of the decree as passed by the Trial Court, the instalments became payable on March 15, 1912, in 1913 and 1914 respectively and in fact all the instalments had become payable before the decree was finally confirmed in 1914. The lower Courts have taken the view that as the application had not been made within three years from the date of confirmation of the decree it was time-barred. It was not suggested in the lower Courts, and it is not suggested before us, that the two subsequent payments could affect the question of limitation in any way. The whole question is whether the application is within time under Art. 182, Clause (2) of the Indian Limitation Act. According to the third column of the Schedule of Art. 182 time begins to run (where there has been an appeal) from the date of the final decree or order of the Appellate Court. Time, therefore, under that clause, commenced to run from October 14, 1914, for the purpose of limitation.