LATAFAT ALI KHAN Vs. KALYAN MAL

JUDGEMENT

(1.) This is an execution second appeal by a judgment-debtor whose objection that the application for execution is barred by limitation has been dismissed by the two Courts below. The facts are that there was a decree passed on 28th. June 1919 in a mortgage suit and the final decree on 21 June 1920 for Rs. 1612.2-0. The first application for execution was made on 11 June 1921 and there was a compromise on 29 August 1921 by which it was agreed that the decretal amount should be paid by yearly instalment of Rs. 300 on each year beginning with lab September 1922 and ending on 1 September 1927. On 23 September 1923 the second execution application was made and, was struck off. On 22nd August 1925 the judgment-debtor deposited Rs. 300 as an instalment and it was not until 16 July 1928 that the decree-holder applied to withdraw this sum. The present application for execution was made on 13 January 1931 for an amount of Rs. 676-4-0 stated to be due on the decree. Rs. 600 had been credited as paid by the judgment-debtor and the decree holder claims that Rs. 300 are due on account of the instalment of 1 September 1926 and Rs. 300 are due on account of the instalment of 1 September 1927. Reliance was also placed by the decree-holder on an alleged payment of 2 August, 1928. The trial Court did not believe the evidence on this point. The lower Appellate Court merely recited the fact that the trial Court had not believed this allegation but did not come to a finding on the point. We have ourselves examined the evidence and we agree with the trial Court that the alleged payment was not proved. One reason was that the decree-holder who was a receiver admitted that he did not enter this alleged payment of 1928 till 1930 in his account books when he made the application for verification of this payment into Court.

(2.) Now the appeal has been argued before us on two points. Firstly, learned Counsel addressed us at great length on his third ground of appeal which states that if Art. 182 applied at all, the case was governed not by Clause 5 but by Clause 7 and on his fourth ground argued that the proper Art. was Art. 181 and not Art. 182. Now it is to be noted that the case for the decree-holder depends on the finding that she application to withdraw the money on 16 July 1928 is a step-in-aid of execution and if this be so, then whether we regard the two instalments of September 1926 and 1927 as the instalments to be realised, or whether we regard the whole amount as being due on September 1926 as learned Counsel for the appellant states was the case, in either case the matter will be saved by limitation. The contention, of learned Counsel was supported by reference by him to two rulings of this Court. One of these is a Full Bench ruling, Joti Prasad V/s. Srichand . Learned Counsel claimed that the 5 question in this ruling was a ruling on the point of whether in the case of an instalment decree the proper paragraph of Art. 182 to look to was para. 7 or para. 5. We do not find that any such question was for mulated in the 5 question either in the original form or as re-drafted on p. 986, nor is any such point contained in the answer on p. 990. That ruling in our opinion dealt solely with the question of what was the correct starting point for the first application for limitation. Now in Art. 182 there are seven paragraphs and we consider that all those paragraphs, except para. 5 deal with the question of what is the time from which limitation begins to run in the case of a first application for execution Para. 5 alone deals with the case of subsequent applications and this paragraph states that the period of three years shall run from, the date of the final order passed on an application made in accordance with law to the proper Court fox execution, or to take some step-in-aid of execution of the decree or order.

(3.) The wording of para. 5 shows that it refers to an application for execution where there has been a previous proceeding in execution in the Court. The other paragraphs do not deal with such a question at all. Reference was also made by learned Counsel to Ram Prasad Ram V/s. Jadunandan Upadhia . In this case as stated in the head-note a Bench of this Court laid down that: A decree-holder has two distinct rights, (1) to receive Instalments as and when they fall due; (2) to enforce the payments of all the Instalments that might remain unpaid, In the event of two successive Instalments remaining unpaid. In the present case, the second right was time-barred as the present application was made more then three years after the right to apply first accrued on default of the first two Instalments, Art. 181, Lim. Act, being applicable. But if the second right is time-barred, it would not follow that the first right is also time- barred. The decree-holder could therefore recover such of the instalments as had fallen due on the date of the application for execution and Art. 182(7), Lim, Act, was applicable.