JUDGMENT
A.M. Joshi, J.
1. Present revision application is arising out of judgment and order dated 4.1.2000 passed by Second Joint Civil Judge, Junior Division, Kelapur, passed in execution petition R.D. No. 34/1996 filed by the judgment debtor. In response to the show-cause notice, the judgment debtor filed objection, which has been decided partly in favour of the judgment debtor, who is aggrieved by the said order and is before this Court in the present revision application.
2. The brief facts are that, the respondent/original plaintiff had filed Reg. Civil Suit No. 64/83 which was decided by judgment and order dated 14th March, 1984. The operative order contemplated the payment of suit amount in four instalments, first instalment commencing from 15th April, 1984 and the amount to carry interest at the rate of 18%. The judgment debtor failed to pay the very first instalment and the decree holder waited for long time and ultimately filed the execution. The objection to the execution as can be precisely stated is that the first instalment was due on 15.4.1984 and the execution proceeding was filed on 16.8.1996, which was clearly beyond 12 years and was delayed by 4 months and, therefore, execution was barred by limitation. According to the decree holder, though the decree was for payment of amount by four instalments and empowering the decree holder to execute the decree at once in the event of the judgment debtor fails to pay even a single instalment equally enables the decree holder to prefer to execute the decree towards each of the instalments or execute entire decree. The decree holder thus filed execution petition and sought recovery of entire amount.
3. The learned trial Judge examined the case and found that first instalment was due on 15.4.1984 and claim for execution thereof i.e. first instalment was beyond limitation and, therefore, directed that the execution petition shall proceed excluding the said first instalment.
4. Learned Advocate for the applicant has placed reliance on reported judgment in Krishnan Madhavan v. Narayanan Jayadevan and Anr. , while the learned Advocate for the decree holder/non-applicant placed reliance on reported judgment in Ranglal Agarwalla and Ors. v. Shyamlal Tamuli and Ors. AIR 1946 Calcutta 500.
5. The question that arises is as to what shall be the construction of the privilege given to the decree-holder when language thereof provides that in the event of default, the decree-holder ‘shall’ be entitled to recover the entire amount or that entire amount shall at once be recoverable in the event of default by the judgment debtor.
6. In the judgment in Krishnan Madhavan’s case (supra) relied upon by the learned Advocate for the applicant, the question that has been dealt with is about waiver, namely as to how should the waiver be construed when the person entitled to recover the entire amount claims to recover entire amount and the matter as to how the waiver had to be inferred and held that taking into account the conduct of the parties waiver should be inferred. This question is not involved in the present case.
7. In the Full Bench judgment of the Calcutta High Court relied upon by the respondent, the question that had arisen in addition to the question as to whether (sic), is as to what shall be the nature and effect of the enabling clause which empowers the decree holder to recover the entire amount at once in the event of default. In this case the stipulation consists a term analogous to stipulation stating that entire amount shall become due and recoverable in the event of default of even one instalment. The facts of case in report at hand i.e. Ranglal Agarwalla (supra), the decretal amount was payable in four instalments while the cost, etc., was paid before the first instalment was to commence. The language of the decree provided that in the event of failure of even one instalment, ‘the entire balance shall be payable at once’. In that case as well, the very first instalment was defaulted, which was due on September/October, 1937. The application for execution was filed after three more defaults and it was canvassed that the application for execution was barred by limitation. After the Court dealt after examining various precedents cited at bar on the point as to the manner in which the enabling clause was liable to be construed, ultimately held that the execution was within limitation and the Executing Court as well as First Appellate Court had erred” in accepting the objection and dismissing the application for execution. It is ultimately held that the enabling clause empowering the decree holder to recover the entire amount at once in the event of failure of payment of instalment does not ipso facto render stipulation of instalment infructuous and require the decree-holder to at once recover the debt, but it is left open to the option of the decree-holder an option to elect to recover at once or wait and claim to recover entire amount within outer limit available in law.
8. It shall be useful to quote for reference the relevant observations contained in Ranglal Agarwalla’s case (supra) as follows:
What we have said so far has brought us to the position that, in our view, a default clause in an instalment decree, under which it can be, but not must be, executed for the entire balance in the event of a default, is a provision entirely for the benefit of the decree-holder and merely gives him an option to avail himself of it, if he chooses, although it may be expressed in the form that the entire amount shall at once become due or payable; and further, that he cannot be deemed to have abandoned his rights under the order for instalments and elected to rely on the default clause unless there is clear proof of his having done so.
To our mind, the distinction between 59 I.A. 376 and the case before us is this that there the claim which would have been made on the occurrence of the default and the claim actually made in the suit brought were the same viz., a claim for the entire mortgage money; and since the limitation for both would obviously be the same, the Judicial Committee said that if the starting point had been ‘when the cause of action arose’ i.e., cause of action for the entire money now sued for, the position might have been different, that is to say, the cause of action for the suit before them, might have been said to have originated earlier. In the present case, the claim made in the application, viz., a claim for certain of the instalments, is not the same as that which could have been made on the occurrence of the default, viz.,, a claim for the entire balance and not only in the limitation for the two different, but the starting point under the Article applicable to the application, as made, is not anything like ‘when cause of action arose’. If the suit which the Judicial Committee had before them was a suit for some amount of the annual interest due and Their Lordships had said that the claim was neither maintainable nor within time, there might be some parallelism between that suit and the present application and such decision might perhaps be invoked by the opposite parties in their favour.
9. In view of above discussion, the execution in the present case is liable to be accepted insofar as balance three instalments and interest, costs, etc., are concerned and the impugned judgment, therefore, cannot be faulted with reasons what was offered or whatsoever. The revision application, therefore, deserves to be dismissed and the same is dismissed with costs.