MT BHAGWATI Vs. SANT LAL

JUDGEMENT

(1.) This is a plaintiff's appeal from an order of the Civil Judge, Aligarh,. reversing an order of the Munsif of Kasganj by which a final decree under Order 84, Rule 5, Civil P.C., was directed to be prepared. The facts necessary for the purposes of this appeal may be stated as follows : On 2l November, 1936 a preliminary decree in a suit brought on the basis of a mortgage was passed in the following terms: It is ordered that the claim of the plaintiff for the recovery of Rs. 2140 with pendente lite and future interest at the rate of Rs. 3/4/- per cent, per annum, be decreed. The parties will receive from and pay to each other costs in proportion to their success and failure. Let a mortgage- decree for sale (digrikefalati) be prepared. The defendant shall pay the decretal amount by half yearly instalments of Rs. 310 each. The first instalment will fall due on 15 December 1936, the second instalment on 15 June 1937 and in future the defendant shall continue to pay accordingly. In case of non-payment of any three instalments, the entire unpaid decretal amount shall be payable in a lump sum ba surat adam aday kisi teen eqsat ke baqiya kul motaleba digri ek musht wajib-ul-ada hoga.

(2.) On 13 January 1941 the plaintiff filed an application for preparation of a final decree under Order 34, Rule 5, Civil P.O. This application was opposed by the defendant on the ground of limitation. Thereupon the plaintiff filed another application praying that in case the Court was of opinion that the application in respect of the entire decretal amount was barred by time, a final decree in respect of instalments which were within time might be prepared. The learned Munsif before whom the applications came on for hearing reached the conclusion that the application for preparation of the final decree was within time so far as the instalments which fell due v within three years prior to the date of the presentation of the application were concerned, and he ordered preparation of the final decree accordingly. From this order, the defendant went up in appeal and the learned Civil Judge, as stated above, reversed the order of the learned Munsif. The learned Civil Judge came to the conclusion that under the terms of the decree no option was conferred upon the plaintiff and consequently the entire decretal amount fell due on 16 December 1937 on which date the right to make an application for preparation of the final decree accrued to the plaintiff. He further held that the application for preparation of the final decree, having been brought more than three years after that date, was barred by time. From this decision the plaintiff has brought the present appeal. In our judgment, the order passed by the learned Civil Judge is correct. It is a matter of agreement that Art. 181, Limitation Act, applies to applications of final decrees. Under that Art. the limitation provided is three years from the date when the right to apply accrues. There can be no doubt that, according to the terms of the preliminary decree, on default of payment of the first three instalments, the plaintiff acquired a right to make an application for the preparation of a final decree, and, if limitation is computed from the date upon which the third instalment fell due, the application which has given rise to the present appeal would be beyond time. In the decree, we have no words like "the creditor would be entitled to" or "the creditor would have the power to recover," and the expression "that the entire decretal amount shall be payable in a lump sum" is imperative and is inconsistent with any option having been given to the plaintiff.

(3.) There is a current of authority in support of the view that the expression "when the right to apply accrues" means "when the, right to apply first accrues" and this view is reinforced by the observations of their Lordships of the Privy Council made in Lesa V/s. Din Mt. Gulab Kunwar , where their Lordships remarked that: If in the Indian cases the question were when did the mortgagee's cause of action arise? i.e., when did he first become entitled to sue for the relief claimed by his suit - their Lordships think that there might be much to be said in support of the Allahabad decisions.