GOPAL NAICKER Vs. ALAGIRISAMI NAICKER

JUDGEMENT

(1.) This appeal arises out of a mortgage suit in which a preliminary decree was passed in June, 1933. It provided for the payment of the mortgage money in seven annual instalments of Rs. 115 each in June of each year; and also that if there were default in the payment of any instalment the decree-holder might then proceed to sell the mortgaged property for the whole of the amount of the instalments still remaining unpaid, and also for the sum of Rs. 262, which he had provisionally relinquished. No instalment was in fact paid in either 1934. 1935. 1936 or 1937. On 22nd June, 1938, before the 1938 instalment had become due, the decree-holder applied for a final decree, conceding, however that though the first instalment had not been paid, he could not claim it as still due. The judgment-debtor contended that the application was barred by limitation. This view was accepted by the learned District Munsif of Koilpatti, but on appeal a final decree was granted by the learned Sub-Judge of Tuticorin. This is a second appeal by the first judgment-debtor.

(2.) It is common ground that the article in the Limitation Act which applies to this case is 181, and that time begins to run when "the right to apply accrues". The essential point at issue is whether that right accrues only once, on the occurrence of the first default, or as often as any default occurs.

(3.) The appellant's learned advocate relies in the first place upon the language of the compromise decree itself. No doubt the language of the translation runs that in default of payment such and such amounts "shall be collected by the plaintiff" but I am satisfied that there is nothing at all in the original Tamil to connote the idea of compulsion, and it is dear from the judgment of the learned Subordinate Judge that it must have been practically the agreed background of the discussion before him that the respondent was given by the decree an option to enforce its penalties or to refrain from doing so. It would certainly require the most explicit language before one could accept the interpretation that a creditor who has agreed to make a concession should" bind himself to withdraw it the moment any default should occur.