Authored By : Henry Thoby Princep, Banerjee

Henry Thoby Princep and Banerjee, JJ.

1. The only question raised in this case is whetherexecution is barred with reference to the instalments that fell due withinthree years before the date of the last application for execution. The decree,which was based upon a compromise, directs payment by instalments, with aproviso that it default is made in the payment of any instalment, then, withoutwaiting for default in other instalments, the plaintiff shall be competent totake out execution and realise the whole amount of the kistbundi together withinterest. In the application for execution the decree-holder alleged that since1295 the judgment-debtors had made default in the payment of the instalments,and that consequently the remaining instalments had all become recoverable, andhe accordingly asked for execution of the whole decree after deducting the sumsalleged to have been paid. The judgment-debtors pleaded limitation and deniedthe payments said to have been made in 1293 and 1294. The Courts below havefound that the decree-holder has failed to make out that any payment was madein 1293 and 1294, and they have accordingly held that as the presentapplication is made more than three years after the date of the first default,the application is barred. The decree-holder did not, in either of the Courtsbelow, make any application to be allowed to execute the decree in respect ofthe instalments that fell due within three years before the date of hisapplication. But the Court of First Instance, in its judgment, noticed thepoint as to whether such application, if it had been made, would not be barred;and it held upon the authority of the case of Mon Mohan Roy v. Durga ChurnGooee I.L.R. 15 Cal. 502 [LQ/CalHC/1888/23] , that an application of that kind would be barred. Itis admitted before us that, upon the facts found by the Courts below, thedecree-holder is barred in his application to execute the entire decree, as thedefault upon which the right to execute the entire decree must be basedoccurred more than three years before the date of the application. But it hasbeen argued that though that was so, yet as the proviso authorising thedecree-holder to execute the entire decree in the event of default in thepayment of any instalment was a provision for his benefit, it was competent tohim to waive the benefit of that proviso and claim execution only in respect ofthe instalments that were not barred. In the first place, we do not think thatthat was the case made in the Courts below; and in the second place, we cannot,in the face of the present application, say that the proviso may be waived,seeing that in this case there has been no acceptance of payment subsequent tothe first default nor a mere abstinence on the part of the decree-holder fromseeking the benefit of the proviso; but, on the contrary, there has been anaffirmative act done by him, showing that he did not waive the benefit of theproviso, but claimed to execute the entire decree. The facts of this case aretherefore very much stronger than those of the case of Mon Mohan Roy v. DurgaChurn Gooee I.L.R. 15 Cal. 502 [LQ/CalHC/1888/23] , and we think that the decree-holder is notentitled to execute the decree.

2. The appeal is therefore dismissed with costs.

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Bir Narain Panda and Ors. vs. Darpa Narain Prodhan and Ors.(17.06.1892 - CALHC)