VEHERBHAI VALLAVBHAI Vs. JAVER SOMA

JUDGEMENT

(1.) This is an application in revision under Section 25 of the Provincial Small Causes Courts Act asking us to review an order of the Second Class Subordinate Judge at Borsad, dismissing a darkhast proceeding.

(2.) The case raises a point of law upon which there has been considerable difference of judicial opinion, as noted by the learned Subordinate Judge. The point is a very simple one. There was a decree dated February 13, 1930, providing for payment of the decretal amount by three instalments, in October, 1930, October, 1931, and October, 1932, and there was a provision in the decree that if the defendant failed to pay any one instalment, plaintiffs might recover the whole debt at once by executing the decree. Default was made in the payment of the first instalment, and darkhast proceedings were filed on October 2, 1934. Admittedly the first instalment is time-barred, but the darkhast is within three years of the due date fixed for payment of the other two instalments, and the question is whether in view of the default clause in the decree all the instalments became payable at the expiration of October, 1930, so that the darkhast is time-barred. That was the view adopted by the learned Subordinate Judge.

(3.) The question as to the effect of a default clause has recently been discussed at length by their Lordships of the Privy Council in Lasa Din V. Gulab Kunwar (1932) 34 Bom. L.R. 1600, P.C. That was a case of moneys payable by instalments under a mortgage bond containing a default clause, and it was held that the mortgage bond did not " become due " within the meaning of Art. 132 of the Indian Limitation Act until both the mortgagor's right to redeem and the mortgagee's right to enforce his security had accrued. Their Lordships pointed out that the default clause was inserted for the benefit of the mortgagee, that he might or might not take advantage of it, and that it did not lie in the mouth of the mortgagor to insist that the mortgagee must take advantage of the mortgagor's default. The Privy Council overruled various cases in which a contrary view hail