Bombay High Court
Darubhai Mithabhai vs Bechar Desai on 16 September, 1924
Equivalent citations: 86IND. CAS.894
JUDGMENT
1. The decree under execution as passed by the Trial Court on September 27, 1911, is in these terms:
That the plaintiff should pay to the defendant No. 2 Rs. 299 and costs of this suit together with interest thereon at the rate of six per cent. by three equal annual instalments from this day. He should pay the first instalment on March 15, 1912, and he should pay every subsequent instalment on the same date of every year. And until the whole debt is paid off as shown above, the charge of defendant No. 2 will permanently remain on the plaint property. If the plaintiff fails to pay any of the instalments whatever, the defendant No. 2 is at liberty to make an application to the Court under Section 15B, Clause (2) of the Dekkhan Agriculturists' Relief Act.
2. This decree was subsequently confirmed by the District Court and ultimately by the High Court on October 16, 1914. The appealing party was the mortgagee, the original defendant No. 2, that is the present appellant. After the decree was confirmed by the High Court on October 16, 1914, he presented the application for execution of the decree on July 2, 1918, and according to the statement in the darkhast two payments, one of Rs. 150 and the other of Rs. 50 Avere made on May 15, 1916, and July 18, 1916, respectively, by the plaintiff to the mortgagee. Execution was sought ill respect of the balance of the three instalments payable under the decree as provided by the decree by an order for sale under Section 15B of the Dekkhan Agriculturists' Relief Act. Both the lower Courts have disallowed the application for execution on the ground of limitation.
3. According to the terms of the decree as passed by the Trial Court, the instalments became payable on March 15, 1912, in 1913 and 1914 respectively and in fact all the instalments had become payable before the decree was finally confirmed in 1914. The lower Courts have taken the view that as the application had not been made within three years from the date of confirmation of the decree it was time-barred. It was not suggested in the lower Courts, and it is not suggested before us, that the two subsequent payments could affect the question of limitation in any way. The whole question is whether the application is within time under Article 182, Clause (2) of the Indian Limitation Act. According to the third column of the Schedule of Article 182 time begins to run (where there has been an appeal) from the date of the final decree or order of the Appellate Court. Time, therefore, under that clause, commenced to run from October 14, 1914, for the purpose of limitation.
4. On behalf of the appellant before us it is urged that the three instalments which were payable under the decree of the First Court became payable really in virtue of the confirmation of the decree, in March 1915, 1916 and 1917 respectively, and that according to that view of the matter this application would be within time as regards the second and third instalments. On the other hand, on behalf of the respondent, original plaintiff, it is urged that though the time for execution begins to run from the date when the decree was confirmed, it does not follow that the instalments payable under the decree which was confirmed really became payable in virtue of the confirmation of the decree as from the date of that confirmation. There is no case exactly like the present case, where the mortgage amount made payable in instalments under the decree has been held to be payable in similar instalments from the date of the confirmation of the decree. The decision in Satvaji Balajirao v. Sakharlal Atmaram Shet 26 Ind. Cas. 754 : 39 B. 175 : 16 Bom. L.R. 778 clearly supports the view that the time fixed for payment of the amount of the mortgage-debt under a decree appealed from may be allowed from the date of the confirmation of the decree. If the principle which has been accepted in this decision is applied to the present instalment decree under Section 15B of the Dakkhan Agriculturists' Relief Act there is no reason why the contention of the appellant should not be accepted. After all, in the result it works in favour of the mortgagor because he gets so much more time for payment of the instalments. No doubt in this case it involves the result that the plea of limitation which might otherwise be open to him would not be open to him. But that by itself is not a sufficient ground for not applying the principle of the decision in Satvaji's case 26 Ind. Cas. 754 : 39 B. 175 : 16 Bom. L.R. 778. The question is not wholly free from difficulty: and it is really a question of determining the effect of confirmation of a decree for sale of the mortgaged property under Section 15B which directs payments by instalments on certain dates. It is always possible for the parties to have the point made clear one way or the other at the time of confirmation. But on the facts of this case we think that the effect of confirmation is to extend the time. According to that view the instalments became payable every year on the fixed date from the date of confirmation. The application for sale in respect of the last two instalments would be in time. Certain payments are admitted in the darkhast, and in fact the amount claimed is less than the amount which would be payable in respect of the last two instalments. We allow this appeal and send back the application for execution to the Court of first instance in order that execution may be proceeded with.
5. Appellant to get his costs throughout in execution up-to-date. Further costs in the application will be dealt with by the Court proceeding with the execution.