LAXMAN KRISHNA MAHAR Vs. PARVATIBAI VISHVANATH SURYAVANSHL

JUDGEMENT

(1.) THIS is an appeal in execution proceedings raising a point of limitation.

(2.) IN 1932 plaintiff, who is respondent here, filed a money suit against the defendant. On July 5, 1933, a decree was passed providing that the sum of Rs. 502 was to be paid by monthly installments of Rs. 25 beginning from August, 1933, and in case of default in payment of three installments, the plaintiff was to be entitled to recover the whole remaining amount. The defendant appealed to the District Judge. While this appeal was pending, on March 17, 1934, the plaintiff filed a darkhast. The original darkhast has not been produced, but no payments had been made by the defendant, and it is common ground that this darkhast must have been one to recover the whole amount remaining due, that is to say, the decree-holder had exercised the option given to him by the decree. A warrant was issued for the attachment of defendant's moveable property, but nothing came of this, and on June 22, 1934, the darkhast was disposed of. On July 31, 1934, the appeal was decided, the order being "Order of lower Court confirmed. Appeal dismissed with costs." The darkhast which has given rise to the present proceedings No.1123 of 1937 was filed according to the concurrent findings of the lower Courts on August 6, 1937, i.e. more than three years from the date of the appellate Court's decree. The original Court dismissed the darkhast as time-barred for that reason. But there was an appeal which was heard by the First Class Subordinate Judge with appellate powers, and he reversed the finding and held that the darkhast was in time.

(3.) IN Satvaji v. Sakharlal (1914) 16 Bom. L.R. 778 a decree had been passed which directed the plaintiff to pay a certain sum of money to the defendants within six months of the date of the decree and directed further that if he did so he was to pay certain other sums by installments. There was an appeal and the decree was confirmed by the High Court and then within six months of the date of the High Court decree the plaintiff paid the first sum of money as directed. The question was whether this payment was within limitation. It was held that it was. The Court in that case was not concerned with the decree as an installment decree, for the time when the installments were to be paid had not arisen. It is nevertheless clear that, if the plaintiff was entitled to pay the first sum within the specified period of the appellate Court's decree, he would also be entitled to pay the installments, and the time for installments would also have to be fixed with reference to the appellate Court's decree. But here also the point which concerns us did not arise. There was obviously no question there of an installment decree having become one which could only be executed as a decree for a lump sum, by reason of the fact that the decree-holder had exercised his option to treat it as a decree of that kind.