B BUTTAN SINGH Vs. SAKAL RAJ SINGH

JUDGEMENT

(1.) The only question to be considered in this appeal is a question of limitation. The respondent, who was the plaintiff in the suit, obtained a preliminary decree on a mortgage in 1936. The mortgage was executed on 13 November 1927 for Rs. 426. The Munsif who granted the preliminary decree gave the defendants the benefit of the Agriculturists Relief Act by reducing the interest and allowing payment by instalments. The order passed by him on 1 September 1936 was as follows: Suit is decreed with costs for Rs. 425 as principal and interest at 12 per cent, up to 1 January 1930 and thereafter it would be reduced to 9 1/2 per cent. Pendente lite and future interest is reduced to 3 1/4 per cent. The defendants are allowed to pay the sum in eight instalments which would be due in January a July, of every year. Usual law in case of default. No instalments were paid by the defendants, but the decree-holder did not apply for a final decree for. sale under Order 3, Rule 4, Civil P.C., until 28 July 1941. The Munsif dismissed the application as being beyond three years from the date when the money became recoverable. He observed that in default of payment of three instalments the whole balance was to become due. The third instalment fell due in January 1938. He considered whether the Temporary Postponement of Execution of Decrees Act saved limitation and held that it did not because it applies only to institutions of suits and execution applications. In first appeal the Additional Civil Judge, on a consideration of certain authorities, held that the instalments which were due in July 1938 and subsequently would be within the period of limitation. The appellant (that is the decree-holder), he said, was entitled to waive his right to have a final decree for the entire amount as stated in the preliminary decree and to ask for a final decree in respect of the instalments which were within limitation. He accordingly set aside the Munsif's decree and passed a final decree in respect of those instalments which became due in July 1938 and subsequently, that is in respect of the last five instalments. The "usual law" referred by the Munsif who passed the preliminary decree is contained in Sub-section (4) of Section 3, U.P. Agriculturists Relief Act. The sub-section reads as follows: If the decree provides for payment by instalments, the Court shall direct that, where the number of instalments allowed is four or five and any two instalments are in arrears, or where the number allowed is six or more and any three instalments are in arrears, the decree-holder may, notwithstanding the provisions of any law for the time being in force, immediately enforce payment of the whole amount then remaining due under the decree, and in the case of a decree for sale or foreclosure apply that a final decree shall be passed.

(2.) The view taken by the Munsif who dismissed the application for a final decree appears to have been that it was incumbent upon the decree-holder to apply for a final decree within three years of the date when,. payment of the third instalment became due and that not having done so within this period, he was barred from making a subsequent application based on later defaults. The Additional Civil Judge observed that while the decree-holder had a right to apply for a final decree in respect of the total amount decreed when three instalments remained unpaid, he could apply for a final decree in respect of each instalment as it fell due. He considered an argument that in a mortgage suit there can only be one final decree and not several and, therefore, the appellant was not entitled to have a final decree prepared in respect of each instalment, but remarked that there is nothing in law against several final decrees being prepared in a ease.

(3.) With regard to this, I do not think that the Additional Civil Judge's view is correct; nor do I think that the question is relevant. The question is not whether it is open to a decree-holder to have more than one final decree prepared but whether he can elect to wait until the end of the period prescribed for payment of the instalments before applying for a final decree, or must make the application as soon as it is possible for him to do so, in this case upon default of payment of the first three instalments. The Additional Civil Judge referred to two cases which he thought supported his view that it was not necessary for the decree-holder to apply as soon as it was possible. These are Badri Narain V/s. Kunj Behari Lal ( 12) 35 All. 178 and Ram Prasad Ram V/s. Jadunandan Upadhia . It has been objected that in both these cases the question arose upon an application for execution and not upon an application for a final decree. To some extent this objection seems to be valid, though not entirely so. Learned Counsel for the appellants, that is the judgment-debtors, rested his case on the provisions of Art. 181, Limitation Act. This provides a period of three years in the case of applications for which no period of limitation is provided elsewhere from the date when the right to apply accrues. He contends that the right to apply accrued as soon as default was made in payment of the third instalment. Learned Counsel for the respondent, on the other hand, contends that the provision applicable is that contained in Clause (7) of Art. 182. This too provides a period of three years, but the date from which the period begins to run is (where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. The argument is that since the judgment-debtors were not required to pay the last five instalments until July 1938, January 1939, July 1939, January 1940 and July 1940, respectively it is these dates which have to be taken into consideration in deciding whether the application was or was not within time.