Bombay High Court
Gulabrao Yeshvant Harphale vs Magan Ghelabhai Gujarathi on 5 January, 1925
Equivalent citations: (1925)27BOMLR461, 87IND. CAS.769, AIR 1925 BOMBAY 326
JUDGMENT Norman Macleod, Kt., C.J.
1. In this case a decree was passed against the present appellants in 1899 in a suit for sale of certain mortgaged property. Redemption was allowed on payment of Rs. 2000 by annual instalments of Rs. 50 and it was directed that if there was a default in payment of two instalments, the plaintiff was entitled to take out execution for the whole amount. It is admitted that there was default in conforming to the terms of the decree so far back as 1901. The plaintiff had then the right to execute his decree for the whole amount, and necessarily time was running against the plaintiff from that date with regard to that right. It seems that thereafter various attempts were made by the plaintiff to recover the decretal amount by Darkhasts, and it is not suggested that the present Darkhast was filed more than three years after the date of the last Darkhast. Accordingly it was held by the Subordinate Judge and also by the District Judge in appeal that the Darkhast was in time.
2. It was argued before us that as this application for execution was made more than twelve years after 1.901 it was barred under Section 48 (i) (6) of the Civil Procedure Code. Against that view the decision in Kaunsilla v. Ishri Singh (1910) I.L.R. 32 All. 499 was relied upon. But that decision has been dissented from by this Court in Gopaldas v. Tribhovan (1920) 22, Bom. L.R. 1420 where it was held in a considered judgment that Section 48 of the Civil Procedure Code has retrospective effect, and governs an application for the execution of a mortgage decree passed before that Code came into force. Hence such an application if presented twelve years after the date of the decree was barred.
3. Therefore, the application to execute the decree for the whole amount cannot be within time, since time began to run against the decree-holder in 1901. He cannot be allowed to continue to execute for the instalments as they fall due, as on default the decree was no longer an instalment decree.
4. The respondent relied upon the case of Narsinha v. Balvant . In that cane the judgment-debtor applied for an extension of time to pay one of the instalments, and this Court held that in cases of default of payment of instalment decrees the Court in Equity has power to relieve the debtor from the consequences of his default, But we do not think we can order at the instance of the judgment-creditor that a decree which has ceased to be an instalment decree should be restored to its previous status HO as to prevent time from running against him.
5. We, therefore, think that the appeal should be allowed and the Darkhast dismissed with costs throughout.