NIRASH SINGH Vs. BALDEO SINGH

JUDGEMENT

(1.) This is an appeal by the decree-holders who are aggrieved by an order of the Additional Subordinate Judge of Monghyr dated 11-7-1945, by which he reversed the decision of the learned Munsif passed in an execution case. The question for decision is whether the learned Subordinate Judge was right in holding that the execution of the decree was barred by limitation in the following circumstances.

(2.) On 3-8-1939 an instalment decree was passed by which the judgment-debtor was directed to pay up the decretal amount in annual instalments, the first instalment to begin on 1-8-1940. The first instalment was not paid and the second instalment due on 1-8-1941 also remained unpaid. The decree-holder filed an application for execution of the decree on 15-8-1944.

(3.) Objection was taken by the judgment-debtor that under the terms of the decree on the non-payment of the first instalment the whole decretal amount fell due and, therefore, the decree-holder should have executed the decree within three years of the date of the first default. The contention did not commend itself to the learned Munsif who came to the conclusion that the first two instalments alone had become time-barred but the decree was executable with regard to the remaining three instalments. The learned Additional Subordinate Judge in appeal took a contrary view as in his opinion upon a proper construction of the decree the whole decretal amount having become due no option was given to the decree- holder from refraining from executing the decree on the happening of the first default. Accordingly he dismissed the execution as being barred by limitation. Hence the second miscellaneous appeal to this Court.