Patna High Court
Braham Kishun Narain Deo vs Harihar Munder on 16 July, 1931
Equivalent citations: 139IND. CAS.202, AIR 1932 PATNA 253
JUDGMENT James, J.
1. The appellant in this case held a decree by which the judgment-debtor was to pay by annual instalments, the first payable in Baisakh, 1331, and the last in Baisakh, 1336. The judgment-debtor paid his instalment of 1331 and he made a subsequent payment which was credited by the decree holder to the instalment due in 1332, although it was paid nearly a year later. No more instalments were paid, and on May 22nd, 192, the decree-holder put his decree into execution by a petition, in continuation of which a second petition was filed on the 4th September, 1929. The judgment-debtor took the defence that execution was barred by limitation. He also alleged that he had satisfied the decree; but the courts have found that he made only two payments, the first in 1331 and the second in 1333. According to the decree-holder the payment which was made in 1333 on the 14th of May, 1926, was for the kist which had fallen due in Baisakh of 1332. The receipt, which was filed by the judgment-debtor, purports to be for the third instalment, but as the learned Munsif observed, there had been an erasure and alteration at this place, and the word "soem" had been substituted for "doem" meaning the second instalment. But whether this payment was for the second instalment or for the third, the judgment-debtor had committed default in omitting to pay the second instalment as it fell due. By the terms of the decree the decree-holder was entitled in the event of default to treat the whole debt as immediately payable; and it was argued that when there was a default in 1332 the whole debt became thus immediately payable, and a cause of action was given to the decree-holder which caused limitation to run, so that unless execution was levied within three years from the date of that default it would be barred. The Munsif held that when the decree-holder accepted payment of this kist he waived the default and that his right to take out execution began with the default in payment of the kist of 1333 on the 27th of May, 1926. He, therefore, held that proceedings in execution were not barred by limitation. On appeal the Subordinate Judge held that there had been a default in payment of the kist of 1332, and that limitation would begin to run from that date whether the payment for that kist was subsequently accepted or not, since the mere acceptance of payment of an overdue instalment would not amount to a waiver of the right to execute the decree for the entire sum due. He treated the questioned receipt as having been given for the instalment due in 1333, remarking that it palpably showed on its face that the payment was in respect of the third instalment. The appeal was accordingly allowed and the execution case dismissed. The decree-holder appeals from that decision.
2. Mr. Mazumdar on behalf of the appellant argues that although the decree-holder may have had a right to execute his decree for the whole amount when the judgment-debtor defaulted in payment of the instalment of 1332, he was not obliged to exercise that right unless he chose, and the option of exercising it would accrue to him at every subsequent default of the judgment-debtor. He might, if he had chosen, have executed the decree against the judgment-debtor in 1332 merely for the instalment which had then fallen due; and although after he had accepted payment of the instalment he could no longer do that, he was still entitled to execute his decree whenever default might occur, either for the instalments that had not been paid, or, if he chose to exercise the option given, to him by the decree, for the whole amount remaining due under it. Mr. Mazumdar also challenges the finding of the learned Subordinate Judge that the receipt (Ex. 1a) was granted for the third instalment, on the ground that he has not considered the finding of the learned Munsif that there has been an alteration on the face of this document, contending that the receipt on the face of it shows that it was originally issued for the second instalment.
3. On the question of whether the default, which gave rise to the present execution proceedings, occurred in 1333 or in an earlier year, Mr. S.N. Sahay argues that the expression of opinion of the learned Subordinate Judge should be taken as a finding of fact which is binding on this Court in second appeal. The learned Subordinate Judge has remarked that the receipt palpably shows on its face that payment was in respect of the third instalment. This of course cannot be denied. But he goes on to say that if there had been any stipulation that all previous defaults would be ignored, the word "doem" should appear in the receipt, ignoring the fact which had been pointed out by the learned Munsif that the word "doem" does appear in the receipt, although by what appears to be forgery the word "soem" has been written over it. It appears to be clear that this receipt was originally granted for the second instalment, and that the judgment-debtor has at some subsequent time altered it, either with the idea of making it appear that he had paid both the second and the third instalments, or with the idea of establishing a ground for pleading the bar of limitation in execution proceedings. The receipt may be taken as for payment of the second kist made nearly a year late.
4. Mr. S.N. Sahay argues that immediately on the default occurring in 1332 the decree-holder had a right to sue for the whole debt by the terms of the decree, and that limitation should be taken to run from that time. But as has been pointed out by this Court, unless a decree clearly leaves the decree-holder no option on the happening of the default but to execute the decree once for all for the whole amount due under it, the decree-holder may execute it on the happening of the first, second, or any subsequent default; and limitation will run only against him in respect of each instalment separately from the time when each such instalment may become due "and payable: Manindra Nath Roy v. Kanhai Ram Marwari 48 Ind. Cas. 728 : 4 Pat. L.J. 365 : (1919) Pat. 46. Thus, if the instalment due for 1333 was hot paid when it, fell due, that instalment would have been irrecoverable if execution had been taken for it in May of 1923, but the decree-holder was not compelled to execute his decree for the whole amount by the mere fact that he had an option to do it if he chose. Mr. S.N. Sahay suggests that the failure to exercise this option when the decree-holder had the power of doing it took away from him the right of exercising it on any subsequent occasion, but this point also has been clearly decided against his contention by the authority of this Court, for which I need only mention the decision quoted above.
5. The appeal must, therefore, be allowed with costs, and the order of the Subordinate Judge set aside and that of the Munsif restored.
Jwala Prasad, Actg. C.J.
6. I agree.