Authored By : Macpherson, John Freeman Norris

Macpherson, J.

1. I think the Munsifs decision is right and that of heSubordinate Judge wrong.

2. The decree is dated the 30th August 1880 and the firstapplication to execute it was preferred on the 25th May 1881.

3. Three days afterwards the judgment-debtor petitioned tobe allowed to pay the amount due under the decree by instalments extending overmany years, the instalments being set but in the petition, which was made withthe consent of the decree-holder. The Court passed this order: "Accordingto the application of both parties it is ordered that the case be struck offand the decree be returned." The present application to execute was madeon the 7th March 1885. The Munsif has held that it is out of time, more thanthree years having expired since the date of the last application. TheSubordinate Judge considered that the Court recognized the arrangement proposedby the parties, and that under Section 210 of Act X of 1877, which correspondswith Section 210 of the present Code, the order above referred to must be takento embody an order that the amount of the decree should be paid by instalments.

4. I am unable to adopt this view. The second clause ofSection 210 empowers a Court, after the passing of a decree for the payment ofmoney, to order, on the application of the judgment-debtor and with the consentof the decree-holder, that the amount decreed be paid by instalments ; and thelast clause enacts that "save as provided in this section and Section 206,no decree shall be altered at the request of parties Section" If,therefore, a decree is silent as to the manner in which it is to be executed,and no subsequent alteration is to be made by order of the Court, the decreemust be executed as it stands. It is clear that in this case there was no ordereither directing an alteration of the decree or that the amount should be paidby instalments, and the Court was not in a position to make any such order as,under article 175 of schedule II of the Limitation Act the application shouldhave been made within six months from the date of the decree. "We cannot,therefore, give to the order of the Court the extended meaning which theSubordinate Judge gives, and the mere fact that an amlah of the Munsif hasrecorded on the back of the decree the instalments set out in the petition ofthe parties, does not help the appellant, as it is not shown when or underwhose orders he did this.

5. A case--Jhoti Sahu v. Bhubun Gir 11 C. 143--has beencited, in which the Court held that, although there was no direct order, therewas a substantial compliance with the provisions of Section 210. Whether thisis so or not must depend on the facts of each case.

6. As more than three years have expired since the date ofthe last application, or since any written admission of the judgment-debtor ofhis liability, the decree cannot be executed. I would, therefore, reverse theorder of the Sub-Judge and restore that of the Munsif but I would under thecircumstances allow no costs of this appeal.

John Freeman Norris, J.

7. I agree with Macpherson, J., in allowing this appeal. Ihave pointed out to my learned colleague, Mr. Justice Mitter, that in the caseof Jhoti Sahu v. Bhubun Gir 11 C. 143 we overlooked the provisions of article175 of the Limitation Act, and I am authorized by him to say he concurs with mein thinking that our decision in that case was erroneous.

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Abdul Rahaman Sodagurvs. Dullaram Marwari (22.07.1887- CALHC)