ISHRAM GOVINDA PATIL Vs. TRIMBAK GANPAT

JUDGEMENT

(1.) The plaintiff, on October 20, 1913, had an award passed in his favour, under which a certain sum was to be paid by annual instalments in December of each year, and it was provided that if the defendant failed to pay as above, the plaintiff was at liberty to sell the mortgaged property according to law and thus recover the amount found due. He had made an application to have the award filed in Court, but subsequently withdrew it. He then brought a regular suit to enforce the mortgage, but the defendant objected that the mortgage had become merged in the award and the suit was dismissed. Subsequently, on April 10, 1922, he brought the present suit to recover a sum of of Rs. 1,000 due in regard to certain instalments, and he prayed that in default of payment by the defendant it should be recovered by the sale of the mortgaged property, subject to a charge for the instalments, which were still due. The trial Judge held that the cause of action had arisen in the mon December, 1914, when the first instalment was payable, and that this suit was time-barred. He said that it must be treated as a suit to enforce the terms of the award and should have been brought within six years from the time the right to sue accrued under Art. 120 of the Indian Limitation Act. The First Class Subordinate Judge, on appeal, held that the suit was in time. He agreed with the lower Court that the suit was one which under the decision in Rajmal Girdharial V/s. Maruti Shivram (1920) I.L.R.R. 45 Bom. 329, s.c. 22 Bom. L.R. 1377 was governed by Art. 120 of the Indian Limitation Act. He than goes on to say:- But the real question in the present case is from what date the period of six years is to be computed. If the award had ordered payment of money immediately, then certainly the suit not being within six years would have become barred by time. But the award made the money payable by instalments and the right to recover the instalment amount would accrue on the date of each instalment. Sis years limitation would thus have to be computed from the date on which each instalment fell due. There is no clause in the award that the whole sum was to become due on default of any instalments. Art. 120 lays down that the six years of limitation are to be computed from the date on which the right to sue accrued. The award having made the money payable by instalments to be paid on particular dates, the right to sue for those instalments accrued on the dates of the instalments, and it cannot be said that the right to sue accrued even for subsequent instalments on the date of the award itself.

(2.) Farther he says :- The suit cannot be stricly called a suit to enforce the award, It is a suit to recover money awarded by the award and charged by the award on immoveable property, and even twelve years limitation under Art. 132 of the Limitation Act would apply.

(3.) This view has been controverted in a second appeal, which has been brought by the defendant. But the view taken by the First Class Subordinate Judge is very strongly supported by the Privy Council ruling in Maung Sin V/s. Ma Tok . In that case the respondent had, in 1916, obtained against the appellant, her husband, a decree in the terms of an award. The decree provided that certain properties were to remain in the possession of the defendant "who will pay to the plaintiff annually the sum of Rs. 2,000 in the month of Kason, on default of the payment of the same (Rs. 2,000 annually) the said properties will be made over to the plaintiff." The payments for 1923 and 1924 not having been made, the respondent applied in 1924 to execute the decree in respect of them, also by delivery of possession of the properties on the default so made, Its was held that the application was not barred as to the payments for 1923 and 1924, having regard to Clause (7) of Art. 182, nor as to delivery of possession since upon the true construction of the decree the right to possession arose on a default in making any annual payment, Art. 182, Clause (7), says time begins to run :- (where the application is to enforce any payment which the decree or order directs to be made at a certain date) from such date.