RAM PRASAD RAM Vs. JADUNANDAN UPADHIA

JUDGEMENT

(1.) This is an execution appeal by judgment-ebtors. A compromise decree fixing the payments of certain instalments on specified dates was passed. The decree further provided that in case of default of two consecutive instalments the decree- holder would have the right to recover the whole amount by execution. The dates fixed for payment were : 6 June 1925, 13 June 1926, 15 June 1927, 3rd June 1928, 22 June, 1929, 11 June 1930, 31 May 1931 and 18 June 1932.

(2.) The decree-holder filed the present application on 21 May 1931 in which he mentioned all the instalments but separated the first three from the rest by means of cross-marks. He did not indicate in his application that it was his case that these instalments were barred by time or that they had been paid, but it is a fact that he did not ask for recovery of these instalments. The judgment-debtors took objection that the application was barred by time because the right to apply accrued when the second default was made in 1926. The decree-holder replied by filing an application alleging that he had received payment of the first three instalments. The Courts below have found that the first three instalments were in fact paid and that there was no default. The lower appellate Court has accordingly allowed the appeal for execution for all the instalments except the last one as to which the application was not pressed by the decree-holder.

(3.) The judgment-debtors have come up in appeal and reiterate their plea of limitation and further urge that it was not open to the Courts below to go into the question of the payments out of Court.