Banerjee, J. - (1.) In suit No. 2707 of 1947 (Kanailal Mukherjee v. Subodh Chandra Mitra), there was consent decree made in favour of the respondent, on April 21, 1945, on terms as hereinafter set out: "1. There will be a decree in favour of the plaintiff for Rs. 13,200/- besides costs carrying interest on the decretal amount at the rate of 12 per cent per annum from the date hereof. Should, however, the defendant pay the decretal amount on the due dates hereinafter mentioned, the rate of interest will be reduced to 9 per cent per annum 2. The decretal amount will be paid in the following monthly instalments. (a) From April 1948 to September 1948, the defendant will pay Rs 176 per month, the first of such payments shall be made on or before 20th April 1948, and the subsequent payments by the 20th of each succeeding month. (b) From October 1948 to March 1949, the defendant will pay Rs. 246/- per month, the first of such payments shall be made on or before 20th October 1948 and the subsequent payments by the 20th of each succeeding month. (c) From April 1949 to March 1950 the defendant will pay Rs. 330/- per month the first of such payments shall be made on or before 20th April 1949 and the subsequent payment by the 20th of each succeeding month. (d) From April 1950 to June 1951 the defendant shall pay Rs. 440/- per month, the first of such payments shall be made on or before 20th April 1950 and the subsequent payments by the 20th of each succeeding month. On each occasion of payment of the above instalments of the decretal amount the defendant shall pay interest on the decretal amount due. 3. If default be made by the defendant in paying any three consecutive monthly instalments of payment as hereinbefore stated, the plaintiff will be at liberty to execute the decree for the amount then due under the decree 4. The defendant will not proceed with the appeal being Appeal No. 8 of 1948 (wherein the defendant is the appellant and the plaintiff is the Respondent) and the same will be allowed to be struck off. 5. The defendant will pay the plaintiff his costs of this suit and of the said Appeal No. 8 of 1948 as between party and party such costs to be certified by Mr. P C. Basu, Attorney at law or taxed by the Taxing Officer of this Court as of an undefended suit. Out of the said costs the defendant will pay in advance Rs 300 on or before the signing of these terms and the balance when certified or taxed as aforesaid shall be paid in two equal instalments, first instalment shall be paid by 20-6-1948 and the balance by 10-9-1948. In default of payment of any of the above instalments of costs the plaintiff will be at liberty to execute this decree for the balance of the costs then due 6. Rai Anukul Chandra Mitra Bahadur who is the father of the defendant doth hereby guarantee the due repayment of the decretal amount with interest and costs as aforesaid 7. On receipt of the amount payable under this decree the plaintiff will (if required by the defendant) enter up satisfaction at the costs of the defendant" On April 11, 1951 there was an adiustment of this decree recorded by Sinha J (as the Chief Justice then was), as hereinbelow set out. "(1) That after adiusting the amounts alreadv paid under the decree herein a sum of Rs. 12,000/- is due to the plaintiff bv the defendant for principal interest and costs including costs of execution proceeding upto 30th November 1950. The said sum will bear interest at 6 pet cent per annum simple from 1st December, 1954 (2) On signing of these terms the plaintiff will abandon all execution proceedings now pending in the Alipore Court as also proceedings in Insolvencv being Case No. 4 of 1950 against the guarantor Raj Bahadur Anukul Chandra Mitra in the Alipore Court and the said guarantor Rai Anukul Chandra Mitra Bahadur stand hereby discharged and the defendant undertakes to cause the guarantor to withdraw the appeal preferred by him in the High Court of Calcutta in its appellate jurisdiction. (3) The defendant will pav the sum of Rs. 12,000/- with interest thereon at 6 per cent per annum to the plaintiff by tht following instalments. (i) Rs. 2,000/- on or before 31st January 1951. (ii) Rs. 1,000/- on or before 30th April, 1951. (iii) Rs. 2,000/- on or before 30th April, 1952. (iv) Rs. 3,000/- on or before 30th April, 1953. (v) Rs. 4,000/- on or before 30th April, 1954 The amount of interest that will accrue due shall be paid along with the last instalment of principal sum (4) In default of payment of any two aforesaid consecutive instalments mentioned in Clause (3) hereof the whole of the decretal amount then due with interest and costs as hereinafter stated shall at once become due and payable by the defendant. (5) The defendant will pay to the plaintiff a sum of Rs. 150/- as settled costs of and incidental to this application for recording these terms of settlement (6) Upon payment oi the sums in terms of Clauses 3 and 5 thereof the plaintiff will at the costs of the defendant enter up full satisfaction in the above suit" The appellant judgment-debtor did not pay the first two instalments in terms of Clause (3) of the adjusted decree quoted above. Thereupon, the respondent decree-holder became entitled to execute the decree for the whole of the decretal amount, due after adjustment, on and from May 1, 1951. The decree-holder respondent, however, did not take steps for execution of the decree, until long after May 1, 1951. On April 10, 1962 the appellant judgment-debtor wrote to the respondent decree-holder in the following language: "Referring to the letter of vour Solicitor Mr. P.C. De of the 27th March 1962 I regret that on account of financial difficulties I could not pay to you any sum payable under the order dated 11th April 1951 made in the above suit. I am paying you today Rs 500/-which you will appropriate in full payment of the sum of Rs. 150/- being the settled costs of and incidental to the application of the said order recording the terms of settlement and the balance sum if Rs 350/- will be appropriated by you toward? part payment of interest of the instalments payable under the said order Please acknowledge receipt of the said sum and also of this letter After discussion with you it has been agreed to by me and you that I shall pay to you the sum of Rs. 12,000/- mentioned in the said order with interest thereon @ 6 per cent per annum from the date of the said order viz. 11th April 1951 (less the said sum of Rs 350) in the following manner (1) A sum of Rs. 100/- (one hundred) only shall be paid by me on or before the 5th day of each month commencing from the month of May 1962 until the month of May 1963. (2) A sum of Rs. 300/- (three hundred) only shall be paid by me on or before the 5th day of each month commencing from the month of June 1963 until your dues are fully paid. (3) The balance of interest that will accrue due on the principal amount of Rs. 12,000/- shall be paid by me along with the last instalment of the principal amount as aforesaid. In default of payment of any one of the aforesaid instalments you will be entitled to execute the said order for the balance of your dues." The appellant judgment-debtor paid Rupees 500/- as promised, on April 10, 1962 and also paid Rupees 1600/- between May 4, 1962 and June 4, 1963 but left a sum of Rs. 10,400/- unpaid.
(2.) On January 1, 1964, Limitation Act 1963 came into operation and repealed the Limitation Act of 1908.
(3.) On June 19, 1964, the decree-holder respondent put the decree, as adjusted on April 11, 1951, into execution and filed a tabular statement seeking realisation of Rs. 10,400/- being the balance of the decretal amount Rs. 7956.14p. being interest due thereon upto June 3, 1964 and also further interest on Rs. 10,400/-. He prayed for appointment of a Receiver to receive and realise a moiety of the salary of the defendant, month by month each month when it become due and payable, in realisation of the decretal debt.;