BOMATU BHADU GHATOLE Vs. GOVARDHANDAS NANABHAI GUJARATHI

JUDGEMENT

(1.) These appeals have been heard together as they involve a common question as to the law o- limitation applicable to instalment decrees where the whole amount is made payable in default of one or more instalments. In the case from which Second Appeal No. 568 of 1933 arises, there was a consent decree for Rs. 769-2-9 with costs and future interest payable in four equal instalments, the first being due in January 1928. The decree also provided that "if any instalment remains unpaid, the defendants to pay all the moneys due in one sum after deduction of the payment already made, and in case the defendants fail to pay accordingly, the plaintiff may recover the amount due by sale through Court of the property under attachment." The vernacular expression for "the defendants do pay" is dyavi; the vernacular for "plaintiff may recover" is vasul Karun qhyavi. On the point of the construction of the decree we take the view that the use of this subjunctive form implies that the judgment-creditor is given an option of recovering the whole amount in case of default, and not that the decree makes it compulsory to apply at once for the whole amount. The words vasul harun ghyav qually well be translated "may or should recover."

(2.) In this case no instalments were paid. So that if time were to run from the first default, an application for execution would be barred after three years from 1 February 1928. The darkhast which gave rise to the appeal was filed on 1 February 1932, and the judgment- creditor then applied to recover the whole amount due. But he gave up his claim for the first instalment and sought to recover the remaining instalments, all of which had fallen due. The District Judge agreeing with the trial Judge, held that the darkhast was in time. He applied the decision of the Privy Council in Lasa Din V/s. Gulab Kunwar 1932 P.C 207, and held that the provision in the decree allowing the whole amount to be recovered in case of default was one in favour of the judgment-creditor, and that if he did not avail himself of it, he did not thereby lose his right to recover the instalments as they fell due. In the other appeal, Second Appeal No. 716 of 1933, there was a consent decree for Rs. 2,798 with costs and future interest, which was made payable by annual instalments of Rs. 500, and it was provided that "in default of payment of any two instalments, the plaintiff do recover the whole amount then remaining due in one sum by sale of the property in suit." The vernacular for "do recover" is vasul karavi. In our opinion there is nothing in the language of these two decrees to justify any distinction being made between them, and in this case also we think that the judgment- creditor was given an option to recover the whole amount. The facts in this case were that the first instalment was made payable in January 1924, and four instalments were paid, viz. for the years 1924, 1925, 1926 and 1927. Instalments for 1928 and 1929 were not paid. The darkhast giving rise to the appeal was presented on 15 June 1932. The cause of action for the recovery of the whole amount arose on 1 February 1929, but the judgment-creditor gave up his claim for the instalments for 1928 and 1929 and prayed for the balance.

(3.) The Subordinate Judge held that the darkhast was in time. The District Judge, who, as it happens, was the same District Judge as in the other case, took the other view and held that it was time barred. He relied on two cases of this Court, Gulabrao v Magan 1925 Bom 326 and Raichand V/s. Dhondo 1918 Bom 163. The point in issue in both cases is directly covered by a recent decision of a Bench of this Court in Veherbhai V/s. Javer Soma 1936 Bom 17, where it was held by the learned Chief Justice and my learned brother N.J. Wadia, that where a decree for money is made payable in instalments and in default of payment of any instalment the whole of the decree becomes payable immediately, it is open to the decree-holder to apply, even after three years from the date of the default, to recover such of the instalments as have become due within three years of the date of his application. The reasoning of the Judicial Committee in Lasa Din V/s. Gulab Kunwar 1932 P.C 207 was held to apply and Raichand v. Dhondo 1918 Bom 163 was doubted and not followed.