Authored By : P.B. Chakravartti, Biswanath Somadder, Blank

P.B. Chakravartti, J.

1. On 8th February 1937, the Second Munsiff of Asansol,exercising Small Cause Court powers, passed a decree in favour of thepetitioners and against the opposite parties in the following terms:

Decree

Rs.

A.

P.

Amount

...

200

0

0

Costs etc.

...

28

6

0

Total,

228

6

0

Defendant do pa; costs within 2 months and the balance inthe following kists :

Rs. 50 in Aswin 1344

Rs. 50 in Aswin 1345

Rs. 50 in Aswin 1346

Rs. 50 in Aswin 1347

in default of one kist entire balance shall be payable atonce.

2. The opposite parties made no payment whatever under thisdecree and, on 7th May 1941, the petitioners applied for its execution forrealising a sum of Rs. 151-10-3 pies which was made up of the three instalmentsof 1345, 1346 and 1347 respectively and Rs. 1-10-3 pies on account of costs ofexecution. The claim for the costs awarded by the decree and the amount of thefirst instalment payable thereunder was abandoned. The application forexecution, however, contained a statement to the following effect: "Thejudgment-debtors have not made any payment as directed by the decree and havedefaulted in the payment of instalments." Aswin 1344 B. S. on which thefirst instalment was to be paid, would correspond to September-October 1937.The application for execution was, therefore, made on a date which was beyondthree years from the date of the first default, but within three years from allthe dates on which the three instalments, sought to be recovered, hadrespectively fallen due. The application for execution was met by the oppositeparties with an objection under S. 47, Civil P. C., which was to the effectthat, under the terms of the decree, the entire amount had become payable assoon as the first default had occurred and the decree not having been executedwithin three years from that default, its execution was now barred bylimitation. The executing Court felt bound by certain decisions of this Courtto give effect to this objection, although its own view was that the objectionwas not sound. The Court thought that a holder of an instalment decree had theright to forego the benefit of a default clause and if he did so, as thepetitioners had done in the present case, he was entitled to enforce his claimon the installments, as such, within the period of limitation calculated fromtheir respective dates. In view, however, of authority to the contrary whichwas binding on it, the executing Court felt obliged to dismiss the petitionersapplication. An appeal by them was similarly dismissed by the Subordinate Judgeat Asansol "having regard to the considerable body of decisions of ourCalcutta High Court and the fact that the decree-holder has also based hiscause of action for execution on the default clause." The last reasonobviously had reference to the statement in the application for execution whichwe have quoted.

3. Thereafter, the petitioners moved this Court and obtaineda Rule. It came up for final hearing before Mukherjea and Blank JJ., whonoticed a conflict of opinion between the earlier and the later decisions ofthis Court and between this Court and other High Courts. Their own view wasthat the application of the petitioners was in order and not barred by limitation.They thought that a default clause, expressed as the clause in the present casewas, only gave the decree-holder an additional right and not a rightrestrictive of his rights under the order for instalments; and that,consequently, on the occurrence of a default, he might either treat the entirebalance as due, in which case he would have to apply for execution within threeyears from the date of the first default, or abide the instalments in whichcase he would have, in respect of each instalment, three years time from thedate when it became due, under Art. 182 (7), Limitation Act. The learned Judgesdissented from the view taken in certain decisions that the option to call inthe entire balance on the occurrence of a default could be waived only by someaffirmative act, such as acceptance of an over-due instalment and that if thedecree-holder merely abstained from doing anything he must be deemed not tohave waived his option, but to have exercised it. As regards the proper Articleof the Limitation Act applicable they thought that Art. 182 (7) could not applyto an application for recovery of the entire balance, treated as fallen dueunder the provisions of the default clause, but that it would apply wheninspite of a default having occurred the application was for recovery ofcertain instalments, as such. Since, however, the majority of the decisions ofthis Court had adopted a view which did not appear to them to be correct, thelearned Judges referred to a Full Bench the following question of law:

Where a decree directs payment of the decretal amount byinstalments on particular dates and provides that in case the defendant failsto pay any instalment at the stipulated period, the entire decretal amountwould be due, whether any application, made more than three years after thefirst default, but relating only to instalments which fell within three yearsof the date of the application, is within time and is governed by Art. 182(7),Limitation Act.

4. Except for its reference to the Article of the LimitationAct applicable, the question has been framed in the same language as that in 11Luck. 276 Ajodhia Prasad v. Bansilal (35) 22 A. I. R. 1935 Oudh. 465 : 11Luck. 276: 156 I. C. 764 (F. B.) and the view taken by the learned referringJudges, accords substantially with that taken by the Full Bench of the OudhChief Court in that case and by the High Courts of Patna, Allahabad and Bombay.

5. With great respect, it appears to us that the questionreferred, which has been framed as merely one of limitation, does not raise thereal issue on which opinion has differed. The difference of opinion which looksapparently like one on a question of limitation, bears, in fact, on a differentmatter and is more fundamental. Regarded purely as a matter of limitation theanswer to the question referred appears to us to present little difficulty. Thedecree contemplated is one which directs the amount declared due to be paid ina certain number of instalments on certain specified dates and further providesthat in default of payment of any one of the instalments, the entire amountoutstanding shall become due. If in spite of a default having occurred, thedecree-holder applies for execution of the decree, not for recovery of theentire balance of the decretal amount, but only of some instalments and suchapplication is within three years from the dates on which those instalmentsfell due, there can be little question as to whether, so far as limitation isconcerned, the application is within time or "governed by Art. 182 (7),Limitation Act." The application being one for the recovery of certaininstalments, it is an application to enforce payments which the decree directedto be made at certain dates, and consequently, Art. 182 (7) applies in terms.Being made within three years from those certain dates, it is clearly withintime under the language of the Article. The real question, however, is whetherthe application is maintainable at all, but that is not a question oflimitation. The root question on which opinion has differed, is whether, aftera default has occurred, the decree-holder is no longer entitled to execute thedecree for any of the subsequent instalments, but must execute it, if at all,for the entire balance of the decretal amount and it is consequentially to thatquestion that the question of limitation has arisen. If it be still open to thedecree-holder to execute the decree for instalments he will be within time ifhe seeks so to execute it within three years from the dates of the instalmentsconcerned; but if, after a default, he can only execute the decree for theentire balance, which the law will regard as having fallen due as soon as thedefault occurred, he will not be within time, if three years have elapsed fromthe date of such default. The real question is what the execution must be for,and when that question must be answered, the question of limitation will befound to answer itself. On the other hand, the question extends beyondlimitation for, if the consequence of a default be that the decree, so far asit provides for instalments, ceases to have effect, no application for recoveryof certain instalments, as such, will lie after a default has occurred,although it may be made within three years of the date of the default.

6. So far as mere limitation is concerned, there can be nodoubt that when the application is for the recovery of certain instalments, theArticle applicable would be Art. 182 (7). When it is one for recovery of theentire balance under the provisions of the default clause, it has sometimesbeen debated whether Art. 181 or Art. 182 (7) will apply, but as pointed out,in the Order of Reference, it is immaterial which article applies, because theperiod of limitation is three years in either case. According as the applicationis of the first kind or the second, the starting point of limitation will bethe dates of the instalments concerned or the date of the first default, andthe period will be three years in both cases, in the first case under Art. 182(7) and in the second case, under that Article or Art. 181, whichever applies.But the real matter for determination is whether after a default has occurred,the decree-holder can any longer make an application of the first kind.

7. We are accordingly of opinion that the question, asframed, does not touch that basic difference of opinion of which the divergenceof views, expressed as regards limitation, has been only a consequence. Theanswer to both parts of the question, as framed, most obviously be in the affirmative,but it appears to us that to return that simple answer will not be to resolvethe real difficulty which arises in cases of this type. For, after the bar oflimitation is crossed and a decision obtained that, as constituted, theapplication is within time, the question whether it is maintainable at all willhave still to be faced. We, therefore, consider it right that in order that thequestion may cover the really important matter which is at the root of thedifference of opinion as regards limitation, we should insert in the question,after the words "would be due" the words "whether, after adefault has occurred, any application for execution relating to subsequentinstalments, as such, is maintainable, and." We feel all the more entitledto do so, because the learned referring Judges have themselves discussed thematter which we propose to include in the question and because, in any event,we shall have to deal with it in deciding the revision case itself which alsohas been referred to us. The question, as amended, would read as follows:

Where a decree directs payment of the decretal amount byinstalments on particular dates and provides that in case the defendant failsto pay any instalment at the stipulated period, the entire decretal amountwould be due, whether, after a default has occurred, an; application forexecution relating to subsequent instalments, as such, is maintainable andwhether any application, made more than three years after the first default,but relating only to instalments which fell due within three years of the dateof the application, is within time and is governed by Art. 182 (7), LimitationAct.

8. The questions actually referred by the Division Bench,about which we see no difficulty, if the application is otherwise maintainablehave already been answered. It was not argued before us, as it seems to havebeen argued in some of the cases cited, that Art. 182 (7) did apply to such anapplication as contemplated by the question, but applied in a different way andwith a different result. It has sometimes been said that when an instalmentdecree provides that the entire balance shall become payable on the occurrenceof a default, the date of the default is the "certain date," withinthe meaning of Art. 182 (7), on which the decree "directs payment" ofthe entire balance to be made and, accordingly, after a default has occurredany application for the whole or a part of the unpaid balance must be madewithin three years from the date of the default under Art. 182 (7). The answer tothat argument is that a date which may or may not occur and which when itoccurs, does so by chance, cannot be a certain date; secondly, that aprovision which declares that an amount shall become payable on a certain date,does not, direct its payment on that date; and thirdly, that for purpose oflimitation, an application must be taken as it is and an application relatingto instalments, whether it is maintainable or not, cannot be treated as onemade on foot of the default clause. We are of opinion that so far as limitationis concerned, an application of the kind mentioned in the question referred, isclearly governed by Art. 182 (7) and is within time. But the question of itsmaintainability remains to be considered.

9. That question, in our opinion, depends entirely on theconstruction of the particular decree concerned. Where the decree itself makesit obligatory on the decree-holder to execute it for the entire balance, if adefault occurs, he cannot obviously adhere to the instalments and put thedecree into execution for their realisation as such. A decree of this characterfell to be considered in 2 All. 443 Shib Dat v. Kalka Prasad (80) 2 All. 443where the provision was that "in the event of default, the decree shall beexecuted for the whole amount." In such a case, no question ofconstruction really arises. But, more often, the default clause is expressed ina declaratory, rather than mandatory form. It either says that in the event ofa default, the entire balance "shall become due," or "shallbecome payable," or again, "shall become realisable;" or itexpresses itself by reference to the decree-holder and says that he "shallhave the power to execute the decree for the whole amount" or "shallhave the liberty" to do so. With regard to default clauses of the lastclass, it may be said that they expressly give the decree-holder a mere optionto demand immediate payment of the whole amount and if he does not takeadvantage of the option, which he is free not to do, the provision for paymentby instalment is not affected. Even this distinction, however, did not avail inthe majority of the cases decided by this Court, where it was held that inspite of the option, the decree-holder, if he was not to be barred by time,would be bound to execute the decree for the whole amount within three years ofthe date of the default, unless he waived the option by some affirmative act.But with regard to this class of cases, however, of which the default clause inthe present case is a specimen, it does involve the question whether, on thelanguage used in the decree, the decree-holder has any option at all.

10. In our opinion, he has, and default clauses of this typemust be construed to be of the same effect as those in which the decree-holderis given a liberty or option to enforce payment of the whole amount. "Theproviso by which the whole amount of the decree becomes due upon default inpayment of any one instalment," said Petheram C. J. in 14 Cal. 352 [LQ/CalHC/1887/20] RamCulpo Bhattacherjee v. Ram Chunder Shome (87) 14 Cal. 352 [LQ/CalHC/1887/20] ,

is a proviso which, look at it how you will, is put for thebenefit of the creditor, the decree-holder, and his benefit alone; and when aproviso is put into a contract or security, and in security I include decree,for the benefit of one individual party, he can waive it, if he thinks fit.

11. The decree in that case provided that "on defaultin payment of any one of such instalments being made, the whole of the decretalmoney should immediately fall due" and, in our opinion, it was rightlyconstrued. An instalment decree, containing a default clause, consists reallyof three parts. First, there is the part which declares the amount due and itbinds the decree-holder and the judgment-debtor equally and absolutely. Next,there is the part, providing for payment by instalments, and it is for thebenefit of the judgment-debtor. Lastly, there is the part providing that incase of a default, the whole of the unpaid balance shall become due, and, it isfor the benefit of the decree-holder, who is given a right to foreclose, as itwere, the instalments. Such a provision in our view, must, whenever possible,be construed in favour of the decree-holder whose right to get immediatepayment has once been interfered with by the order for instalments and thecorrect way to construe it is to hold in favour of an option, unless thelanguage used in the decree clearly bars it. So it was held in 4 pat. L. J. 365Manindra Nath Roy v. Kanbai Ram (18) 5 A. I. R. 1918 Pat. 95 : 4 Pat. L. J.365 : 48 I. C. 728 and 16 All 371 Shankar Prasad v. Jalpa Prasad (94) 16 All.371 and in our opinion, those cases were rightly decided. A proviso in aninstalment decree which merely says that in the event of a default, the entireamount shall immediately become due or payable does not, we think, exclude anoption in the decree-holder to take advantage of it or not to do so; it is notintended to be substitutive of the order for instalments in case of a default,but only to come into force as an alternative at the will of the decree-holder.

12. But even if there be an option in the decree-holder,what is the practical effect when a default has occurred On that question, adoctrine has been evolved by decisions of this Court for which we can see nowarrant in principle. "Where there is an optional right to enforce paymentof money," observed Banerjee and Rampini JJ. in 24 Cal. 281 [LQ/CalHC/1896/132] Silab Chand v.Hyder Malla (97) 24 Cal. 281 [LQ/CalHC/1896/132] , "such right may be waived; but when it isnot waived, or when there is nothing to show that it has been waived,limitation would run from the date when the right accrues." It wasobserved in other cases that mere abstinence from doing anything or sleepingover ones rights could not constitute waiver and that waiver could beestablished only by proof of some affirmative act, such as subsequentacceptance of an overdue instalment. Some decisions even went the length ofholding that acceptance of an instalment was the only way in which the optioncould be waived. These decisions overlook the fact that an option is alwaysbetween two alternatives and when there is no evidence of any act, there is nojustification for presuming that it was exercised in favour of one of thealternatives, rather than the other. In our opinion, the correct view is notthat when there is no evidence of waiver, the option must be deemed to havebeen exercised, but that when there is no evidence that the option has beenexercised, it must be deemed to have been waived. When the decree-holderapplies for realisation of instalments rather than for the whole amount, thatitself is evidence that he does not wish to exercise his option or, to put itin another way wishes to exercise it in favour of abiding by the instalments;and unless there is something to show that he had previously sought to enforcethe default clause, it is not easy to see how it can be said that he mustnevertheless be deemed to have done so. An option to which a person is heldbound and which he is deemed to have exercised unless he expressly waives it,is no option at all and the decisions of this Court appear to us to convert anoption into an imposition. We are also of opinion that if the option can bewaived there can be no justification for holding that it can be waived only byone method, viz., acceptance of an overdue installment.

13. What we have said so far has brought us to the positionthat, in oar view, a default clause in an instalment decree, under which it canbe, but not must be, executed for the entire balance in the event of a default,is a provision entirely for the benefit of the decree-holder and merely giveshim an option to avail himself of it, if he chooses, although it may beexpressed in the form that the entire amount shall at once become due orpayable; and, further, that he cannot be deemed to have abandoned his rightsunder the order for instalments and elected to rely on the default clauseunless there is clear proof of his having done so. This, in our opinion,follows from general principles and the language of the decree but not, as thepetitioners contended, from any thing contained in Art. 182 (7), LimitationAct. It was argued on their behalf that since, in the case of instalment bonds,the Legislature had enacted a general provision in Art. 74, and a specialprovision in Art. 75 which recognised a right of waiver, but it had made nosuch special provision in the case of instalment decrees, such a provision,recognising a right of waiver, must be deemed to be implied in Art. 182 (7). Asto this argument, it is enough to say, that the substantive rights of partiesunder a bond or a decree cannot be derived from or sought for in the LimitationAct.

14. If the only effect of a particular default clause be togive the decree-holder an option to execute the decree for the entire balanceand if he cannot be deemed to have exercised his option in the absence of dearproof of having done so, we can find nothing in reason for still limiting himto the default clause and nothing in the Limitation Act to bar him fromrecovering anything under the instalments after three years from the default,provided he is with in three years from the dates on which the instalments felldue. So far as reason goes, it seems to us plainly unreasonable that what wasintended to be a penalty against the judgment-debtor should be converted into apenalty against the decree-holder and that although the decree-holder may wishto forbear from withdrawing the indulgence of instalments from thejudgment-debtor, the law should compel him to do so on pain of losing his moneyaltogether. But the opposite parties contended that such was in fact the law.It was said that even if the decree-holder had an option, the running oflimitation against him did not depend upon an exercise of the option but wascaused by the very fact that an option existed. If be was in a position toexecute the decree for the whole amount, time would run against him, althoughhe might be equally entitled at the time to adhere to the instalments. If hedid not execute the decree for the whole amount within three years and securehis money, his parallel right to claim under the instalments would beextinguished as soon as his right to execute the decree for the whole amountwas gone. After three years from the default had elapsed, he could have nosurviving right to claim a part of the money under some of the instalments,for, the right to a part had gone with the right to the whole. To the rejoinderthat the matter was concluded by the principle laid down by the JudicialCommittee in 59 I. A. 376 Lasa Din v. Mt. Gulab Kunwar (32) 19 A. I. R. 1932P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59 I. A. 376 : 138 I. C. 779 (P. C.), it was repliedthat the present case came within the exception made by their Lordships in thelatter part of their judgment.

15. In our opinion, the principle laid down in 59 I. A. 376Lasa Din v. Mt. Gulab Kunwar (32) 19 A. I. R. 1932 P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59I. A. 376 : 138 I. C. 779 (P. C.) applies to the case before us and theexception made by their Lordships does not. Apart from that exception withwhich we shall presently deal, we may point out that the contention advanced bythe opposite parties is self-contradictory, for, while conceding an option onthe one hand, it, on the other hand, negatives it. If as they contend, theright to claim under the instalments must, in any event, be lost, because theright to claim the whole balance in one sum is lost, it is useless to say thatnevertheless there was an option. The result contended for can happen only ifthe effect of the default clause be that a single default will operate to makethe entire balance, due eo instanti, without, to adopt the language of LordBlanesburgh in 53 I. A. 187 Pancham v. Ansar Hussain (26) 13 A.I.R. 1926 P. C.85 : 48 All. 457 : 53 I. A. 187 : 89 I. C. 650 (P.C.), "any act ofelection, cancellation or other form of response or acceptance on the part ofthe mortgagees and even, it would appear, against their desire." To saythat such can be the effect of a default clause, while admitting that there, isan option under it, is to contend the impossible.

16. In our view, once it is conceded that there is anoption, the principle of 59 I. A. 376 Lasa Din v. Mt. Gulab Kunwar (32) 19 A.I. R. 1932 P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59 I. A. 376 : 138 I. C. 779 (P. C.) can nolonger be excluded. In that case, dealing with a mortgage bond under which thedate of payment was at the end of six years, but which at the same timeprovided that in the event of default in the payment of the annual interest,the mortgagee would have power to realise the entire mortgage money even withinsix years, the Judicial Committee held that the money did not become duewithin the meaning of Art. 132, Limitation Act merely by the occurrence of adefault and that in spite of a default the mortgagee had an option to enforcehis security at once or wait till the expiry of the full term. The substance ofthe decision is that the mortgage money did not automatically become due by theoccurrence of the default, but had to be made due by the mortgagee by an exerciseof his option to call it in. The same principle must apply in the present caseand for the same reasons as given by their Lordships, which we need not repeat.Here too, the entire balance of the decretal amount did not become payableunder the terms of the default clause, simply because, a default had occurred,but had to be made payable by an exercise of the decree-holders option. Sincethe decree-holder did not choose to exercise his option, he remained entitledto claim under the instalments, just as the mortgagee was held to have remainedentitled to sue upon his mortgage on the expiry of the full term in Lasa Dinscase Lasa Din v. Mt. Gulab Kunwar (32) 19 A. I. R. 1932 P. C. 207 : 7 Luck.442: 59 I. A. 376 : 138 I. C. 779 (P. C.).

17. We think that the exception made by their Lordships inthe latter part of their judgment, besides being of a tentative character, doesnot bear upon this view of a decree-holder or mortgagees rights under anoption of this position in law. In the case before them, the suit was for theentire mortgage money and not for the realisation of the amount of the interestfor any year which had not been paid. With reference to such a claim in such asuit, their Lordships observed that if the relevant Article of the LimitationAct had said that time would begin to run from the date when the cause ofaction arose, much might be said in support of the view that the suit would notbe in time unless brought within the period of limitation, as calculated fromthe date of the default Prima facie, this observation does not seem to accordvery clearly with the view expressed as to the effect of the default clausefor, if the money did not become due till the option was exercised equallycould no cause of action arise till after the money had been made due by anexercise of the option and the debtor had yet failed to pay. But theirLordships only say that in the event contemplated, much might be said in favourof the contention of the mortgagors and not that it would necessarily succeed.Besides, if there is this dictum in Lasa Dins case, Lasa Din v. Mt. GulabKunwar (32) 19 A. I. R. 1932 P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59 I. A. 376 : 138 I. C.779 (P. C.) there is another to the opposite effect in the case in 3 I. A. 1Juneswar Dass v. Mahabeer (75) 1 Cal. 163 [LQ/CalHC/2000/536] : 3 I. A. 1 : 3 Sar. 581: 3 Suther222 (P. C.) where a suit was brought upon a mortgage in August 1871 within sixyears from the date of payment (June 1866), but beyond six years from the date(May 1865) when an event, on the happening of which the debt could at once besued for, had happened. Their Lordships held that the suit was governed by cl.12, Limitation Act of 1859, under which the period of limitation was 12 yearsfrom the date when the cause of action arose, but referring to an argumentfounded on cl. 16, under which the period was six years from the same startingpoint, Sir Montague Smith observed that upon a consideration of the bond therewould be good reason for holding that the cause of action had arisen within sixyears before the commencement of the suit. In this state of authority, we areof opinion that the opposite parties can derive no assistance from the apparentexception made in 59 I. A. 376 Lasa Din v. Mt. Gulab Kunwar (32) 19 A. I. R.1932 P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59 I. A. 376 : 138 I. C. 779 (P. C.).

18. We are further of opinion that the exception cannotassist the opposite parties for a clear difference in the present case on thefacts. The application of the decree-holders was for the recovery of certain instalmentsonly. The opposite parties could not point to any Article in the Limitation Actwhich could be said to apply to the application and under which the startingpoint was "when the cause of action arose." They relied upon Art. 181and the starting point there mentioned, viz., "when the right to applyaccrues" and contended, that for the present purposes it was practicallyof the same effect. Although "when the right to apply accrues" maymean "when it first accrues" and may be practically synonymous with"when the cause of Action arose," we can see no reason for theassumption that Art. 181 could apply to the application made by thepetitioners. So far as recovery of the instalments, as such, is concerned, anapplication for that purpose comes clearly, as we have pointed out under Art.182 (7) and there is no room whatever for application of the residuary Article.There is thus no provision in the Limitation Act, applicable to the presentcase, under which the starting point is the same or of the same effect as thatconsidered by the Judicial Committee and, accordingly, the exception made bytheir Lordships, assuming it is a real exception, is not available to theopposite parties.

19. To our mind, the distinction between 59 I. A. 876 LasaDin v. Mt. Gulab Kunwar (32) 19 A. I. R. 1932 P. C. 207 : 7 Luck. 442 [LQ/PC/1932/46] : 59 I.A. 376 : 138 I. C. 779 (P. C.) and the case before us is this that there theclaim which would have been made on the occurrence of the default and the claimactually made in the suit brought were the same viz., a claim for the entiremortgage money; and since the limitation for both would obviously be the same,the Judicial Committee said that if the starting point had been "when thecause of action arose" i. e., cause of action for the entire money nowsued for, the position might have been different, that is to say, the cause ofaction for the suit before them, might have been said to have originatedearlier. In the present case, the claim made in the application, viz., a claimfor certain of the instalments, is not the same as that which could have beenmade on the occurrence of the default, viz., a claim for the entire balance,and not only is the limitation for the two different, but the starting pointunder the Article applicable to the application, as made, is not anything like"when the cause of action arose." If the suit which the JudicialCommittee had before them was a suit for some amount of the annual interest dueand their Lordships had said that the claim was neither maintainable nor withintime, there might be some parallelism between that suit and the presentapplication and such decision might perhaps be invoked by the opposite partiesin their favour.

20. For the reasons given above, we hold that both onprinciple and authority, the application made by the petitioners ismaintainable, that it is governed by Art. 182 (7), Limitation Act and that itis within time. The answer to the question referred, both as framed by theDivision Bench and as amended by us, must therefore, be in the affirmative asto all its parts.

21. It remains to deal with the revision case itself. Sincethe application for execution was thrown out in limine on the ground oflimitation, nothing also was decided and there is nothing else for us toconsider. We do not think the Subordinate Judge was right in holding that theapplication was also based on the default clause. The reference to the defaultwas only a statement of fact and not a ground of the application. Theapplication will now be restored and dealt with in accordance with law andexecution will proceed, subject to any other objection which the petitionersmay have taken under S. 47, Civil P. C. In the result, the question referred toa Full Bench, and as amended by us, is answered in the affirmative as regardsall its parts. The rule is made absolute. The orders of both the Courts beloware set aside and it is directed that the executing Court do proceed to dealwith the application on its merits in accordance with law. Since the objectionraised by the opposite parties had the support of the majority of the decisionsof this Court, we direct that each party will bear its own costs throughout.

Biswanath Somadder, J.

22. I agree.

Blank, J.

23. I agree.

.

Ranglal Agarwalla and Ors. vs. Shyamlal Tamuli and Ors.(14.06.1946 - CALHC)