GAYA PRASAD Vs. JADUNANDAN BHAGAT

JUDGEMENT

(1.) In this appeal by the decree-holder the question for consideration is whether the Court below was right in holding that the execution of this instalment decree was barred by limitation except in so far as the application for execution was made within three years of the fourth instalment.

(2.) On 31 October 1938 an instalment decree was obtained by the decree- holder. The instalments were to be paid as follows: On 15-11-1938 first instalment of Rs. 200, on 15.4-1939 second instalment of Rs. 300, on 30-11-1939 third instalment of Rs. 300, and on 15-4-1940 the fourth and the last instalment the balance of Rs. 239-12 6. The judgment-debtor paid the first instalment before it fell due, but he made a default in payment of the remaining instalments. Accordingly the decree-holder started an execution case on 25-1-1943 for recovery of the remaining instalments. The learned Additional District Judge has taken the view that the decree-holder was entitled to execute his decree only for the fourth instalment as the application for execution was filed within three years of the due date of the instalment. Hence the appeal on behalf of the decree- holder.

(3.) It is argued on behalf of the appellant that the view taken by the Court was wrong inasmuch as the decree gave an option to the decree-holder allowing him to postpone the execution of the decree even though the instalments had fallen in arrears. We are not in agreement with this contention because the only option of the decree-holder was that he could execute the decree for the second instalment within three years of the due date thereof or for the third instalment within three years of the due date thereof, but not that he could execute the whole decree beyond three years of the due date of the second instalment. This identical question has been considered recently in the Calcutta High Court in Ranglal Agarwalla V/s. Shyamlal A.I.R. 1946 Cal. 300 where the learned Judges have noticed with approval two Division Bench cases of this Court reported in Manindra Nath Roy V/s. Kanhai Ram and Brahm Kishun Narain Deo V/s. Harihar Munder A.I.R. 1932 Pat. 253 which took a view identical with that taken by the learned Additional District Judge. A Division Bench of this Court recently took the same view in Miscellaneous Appeal No. 340 of 1946 disposed of on 30-7-1946.