Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. This is an appeal against a decree of the District Judgeof Bhagalpur, affirming the judgment of the Munsif of Banka. The appellantbefore us applied to the Munsif on the 9th February 1892 for execution of adecree obtained by him against the respondents on the 18th April 1888. He hadsued the respondents on a bond, and a compromise had been effected, making thesum claimed payable by instalments. This compromise was given effect to in thedecree of the 18th April 1888. The first instalment was payable on the 26thApril 1888, and admittedly more than three years have elapsed between that dateand the date of the application to the Munsif for execution. But the dates ofpayment of the other instalments are within three years of the date of theapplication to the Munsif. The decree of the 18th April 1888 provides that ifthe instalments are not paid on the dates fixed for their payments, then"the plaintiff will have the power to cancel the instalments and realizethe entire amount with interest."

2. The appellant when he applied to the Munsif for executionalleged that the first instalment had been paid, and applied for execution ofhis decree in respect of the other instalments. The judgment-debtors, however,denied that they had paid any instalment, and contended that the execution ofthe decree was accordingly barred by limitation.

3. The Munsif found both these points in favour of thejudgment-debtors, and as already said, the District Judge affirmed hisfindings. Hence this appeal. Before us, it is urged (1) that the Munsif wronglyrefused to admit in evidence an account book which the decree-holder wished tofile in support of his plea of payment of the first instalment; and (2) that asby the terms of the decree of the 18th April 1888, on non-payment of anyinstalment he has the power, but is not obliged to treat the whole decretalamount as due, the rulings cited by the Munsif, viz., Judhistir Patro v. NobinChandra Khela I.L.RCal. 73 and Mon Mohun Roy v. Durga Churn Gooee I.L.R. Cal.502 are inapplicable, and therefore, that whether the first instalment has beenpaid or not, the execution of the decree for the remaining instalment is notbarred.

4. We will deal first with the second of these contentions.In support of this plea, the learned pleader for the appellants relies on thecase of Chandra Kamal Das v. Bissessurree. Dassia 13 C.L.R. 243 and has alsocited the cases of Asmutullah Dalal v. Cally Churn Mitter I.L.R. Cal. 56Nilmadhub Chuckerbutty v. Ramsodoy Ghose I.L.R. 9 Cal. 857 and Ram CulpoBhattacharji v. Ram Chunder Shome I.L.R. Cal. 352. But all these cases havebeen considered in the second of the cases referred to by the Munsif, viz., MonMohun Roy v. Darya Churn Gooee I.L.R. Cal. 502. In this case it is said thatthe rule to be deduced from all the cases is that when a decree or order makesa sum of money payable by instalments on certain dates, and provides that ondefault of payment of one of the instalments, the whole of the money shallbecome due and payable, and be recoverable in execution, then under a 179 ofthe Limitation Act, as under corresponding articles in earlier Acts, limitationcommences to run when the first default is made." It is further said"that there has been engrafted on this general rule an exception to theeffect that if the right to enforce payment of the whole sum due upon defaultbeing made in the payment of an instalment has been waived by subsequentpayment of the overdue instalment on the one hand and receipt on the other,then the penalty having been waived, the parties are remitted to the sameposition as they would have been in if no default had occurred. The authoritiesare quite consistent with one another. The only case which seems to me toconflict in any way with these cases is the case of Chandra Kamal Das v.Bissessurree Dassia 13 C.L.R. 243 (This is the case relied on by the learnedpleader for the appellant before us)--"There it does appear to me to havebeen held that although in a case similar to the present defaults had occurredand no subsequent payment had been made in respect of the kists in default, itwas still open to the creditor to say that the provision making the whole sumpayable on default of payment of one instalment was one only for hisprotection, and that he might afterwards waive it and put it out of the way asregards the period of limitation. This seems to me irreconcilable, if I correctlyunderstand it, with the current of decisions on the subject, and especiallyinconsistent with the decision in Chenibash Shaha v. Sridam, Mandal I.L.R. Cal.97. I am disposed to think that there must have been some peculiarity in thecase beyond what appears in the report, because the learned Judges cite as anauthority in support of their view the case of Asmatullah Dalal v. Kally ChurnMitter I.L.R. Cal. 56 which appears to me, as I understand it, to be anauthority for the contrary view."

5. It is clear then that the learned Judges who decided MonMohun Roy v. Durga Churn Gooee I.L.R. Cal. 502 did not approve of the decisionin Chandra Kamal Das v. Bissessurree Dassia 13 C.L.R. 243 and dissented fromthe view therein expressed as strongly as it was possible for them to do. Asthe ruling in this case stands alone and is contrary to the current ofdecisions in respect of this matter, we are unable to follow it. We cannot holdthat mere abstinence from suing can amount to waiver, or that there can be anywaiver so as to affect limitation save by payment and acceptance of an overdueinstalment. Nor do we think that any distinction can be drawn, as has beenattempted in this case to be drawn, between a case in which it is provided thaton non-payment of an instalment the whole amount shall become due, and one inwhich it is provided that on non-payment of an instalment the whole amount maybe sued for. There seems no reason why limitation should begin to run in theone case and not in the other. Finally, we may say that the clause in thedecree on which the appellant relies in this case to the effect that onnonpayment of an instalment it shall be in the power of the decree-holder torealize the full amount appears to us to have probably never been intended togive the decree-holder the option of waiving the default if he pleased, andthat it implied nothing more than the usual condition that on non-payment of aninstalment the whole decretal amount would become exigible.

6. Another case has been cited before us, viz., Bir NarainPanda v. Darpa Naram Prodhan I.L.R. Cal. 74. The terms of the bond sued on inthat case are very similar to those of the present appellants decree, for thebond provided that on default of payment of one instalment, the plaintiffshould be competent to take out execution and realize the full amount. Thedecree-holder, as in this case, alleged payments, which were found not to havebeen made, and applied for execution of the whole decree. He did not, aspointed out in the judgment in this case, "make any application to beallowed to execute the decree in respect of the instalments that fell duewithin three years before the date of his application. But the Court of FirstInstance," it is said, "in its judgment noticed the point as towhether such application, if it had been made, would not be barred, and it heldupon the authority of the case of Mon Mohun Roy v. Durga Churn Gooee I.L.R.Cal. 502 that an application of that kind would be barred." The contentionwas, however, raised in the High Court, and the pleader for the appellant inthis case has pressed upon our attention the passage in that judgment in whichit is said--" But it has been argued that though that was so, yet, as theproviso authorising the decree-holder to execute the decree in the event ofdefault in the payment of any instalment was a provision for his benefit, itwas competent to him to waive the benefit of the proviso and claim executiononly in respect of the instalments that were not barred." But this can scarcelybe said to be in favour of the present appellant, for though no doubt the Courtdid not say that this plea would not be a good one, if raised, but merelycontended itself with observing that it had not been raised in the Courts belowand could not have been raised in the circumstances of the case, yet it did notin any way express approval of this doctrine. Hence, taking into considerationthe state of the authorities on this point, we are not prepared to admit thatthere is any force in the contention of the appellant that, owing to the termsof the decree, he had a right to waive any default that may have been made inpayment of the first instalment and that even if he merely abstained fromtaking out execution on such a default being made limitation did notnecessarily begin to run against him.

7. We now turn to the first of the appellants pleaderscontentions. We are of opinion that the Court of First Instance should not haverefused to admit in evidence the account book which the decree-holder wished toproduce, and prove, when his first witness was under examination. He wished toproduce this account book to disprove the plea of non-payment set up by thejudgment-debtors. He could not be expected to have anticipated this plea at thetime of his presenting his application for execution, and there is nothingwhich makes it necessary for him to file with his application all documentswhich on an objection to execution being raised by the judgment-debtors it maybe necessary for him to produce in Court to repel that objection. The learnedpleader for the judgment-debtors argues that under the last clause of Section258, Civil Procedure Code, as the payment in question was not certified to theCourt, the decree-holder was not entitled to prove it. We are, however, ofopinion that though under the provisions of Section 258, Civil Procedure Code,the payment in question, if made, could not be recognized as a payment oradjustment of the decree, yet it was and is competent to the decree-holder toprove this payment for the purpose of showing that the period of limitation didnot begin to run in this case until the default made in respect of the secondinstalment. See the Full Bench case of Fakir Chand Bose v. Madan Mohan Ghose 4B.L.R. F.B. 130. It is true that this case refers to the provisions of Section206 of Act VIII of 1859, but they do not appear to us to be on this pointmaterially different from those of Section 258 of the present Code. We are,therefore, unable to agree with the ruling in the case of Mitthu Lal v.Khairati Lal I.L.R. All. 569 decided by Tyrrell, J., who appears to haveconsidered that in consequence of the alteration in the wording of the section,the Full Bench ruling of this Court cited above ceases to have any weight.

8. We, therefore, consider that this case must be remandedto the Court of First Instance with directions to admit in evidence the accountbook, which the decree-holder wished to produce, and after giving anopportunity for its being proved that it will come to a finding as to thealleged payment of the first instalment. It may be that if the account book befound genuine, the evidence as to the payment already given will present adifferent aspect.

9. If the alleged payment be found not to have been made,then in accordance with our decision on the appellants first contention, theapplication for execution should be rejected. If the alleged payment be foundto have been made, the decree-holders application should be allowed.

10. Costs to abide the result.

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Hurri Pershad Chowdhryvs. Nasib Singh and Ors.(31.01.1894 - CALHC)