- (1.) Upendra Mohan Tagore, as executor of the late Prasanna Kumar Tagore, applied for execution of a decree, dated in April 1853, against Garibulla Bepari and others. The facts are that, on the 29th of September 1858, the defendants executed a bond for payment by installments of 50 rupees payable in Bhadra (August and September) and Magh (January and February) of each year, with a stipulation that; if they failed to pay a single installment, the whole amount of the bond, including a part which had been remitted, should become due, and plaintiff should be entitled to realize the same by execution. The decree-holder admitted by his vakil in Court his assent to these terms, and it was ordered "that the case be decided according to the terms of the installment-bond," a copy of which was ordered to be kept in the record. The installment due in Bhadra 1271 (August and September 1864) was paid on the 5th of Aswin 1271 (20th September 1864). The installment due in Magh 1271 (January and February 1865) was not paid, but subsequent payments were made the last of which is said to have been in Paush 1272 (December 1864 and January 1865). The application for execution was in Paush 1274 (December 1867 and January 1868).
(2.) The first Court held that, as the application for execution was within three years of the time when the defendant failed to pay the installment of Magh 1271, it was within time.
(3.) The Judge calls the proceeding an action for execution, and holds that limitation runs from the first default, i.e., in Bhadra 1271, notwithstanding subsequent payments. He refers to the case of Hurronath Roy v. Maherulla (7 W.B., 21). That case, however, turns on the construction of Section 4* of Act XIV of 1859.;