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Bombay High CourtIndian Cases

Laxman Kalba Hodkar vs Ramchand Hamichand Shah And Co. And Anr. on 29 November 1991

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Bombay High Court
Laxman Kalba Hodkar vs Ramchand Hamichand Shah And Co. And Anr. on 29 November, 1991
Equivalent citations: 1991(4)BOMCR31, (1991)93BOMLR816, 1991(1)MHLJ1576
JUDGMENT

M.F. Saldanha, J.

1. The petitioner in this case assails the correctness of an appellate judgment dated 5-10-1983 passed by the learned District Judge, Pune, in Civil Appeal No. 752 of 1982. The present petitioner was a judgment-debtor in respect of a decree passed on 15-1-1963. It is undisputed that the decree was made payable in two instalments, the first in January 1964 and the second in January 1965. It was further provided that default of payment of two successive instalments would entail execution of the entire decretal amount. It is also undisputed that the present execution application was filed on 4-11-1976. Under Article 136 of the Limitation Act, 1963, the period of limitation for execution of a decree is 12 years and, consequently, the petitioner contended before the trial Court that the execution application filed in November 1976 was time-barred. This contention was rejected and the matter was taken in appeal. The learned District Judge held that the second instalment of the decree was due in January 1965 and that, consequently, in respect of an execution application pertaining to the decretal amount, a period of 12 years would run from that date and, consequently, the application filed after 11 years and 10 months was within the period of limitation.

2. It is contended before me that admittedly the first instalment was due in January 1964 and the said amount was not paid. In respect of this default, therefore, it was open for the decree holder to execute the decree in respect of that amount. In respect of the reminder of the amount the cause of action would arise in January 1965 when the default in respect of the second instalment took place. Mr. Deshmukh, learned Counsel appearing on behalf of the petitioner, has drawn my attention to a Full Bench decision of this Court in the case of Chunilal v. Shivram, , wherein under rather similar circumstances, the Full Bench of this Court pointed out that the correct position in law was that the period of limitation would start running on and from the date when the first instalment became due because it is from that date the decree holder acquires the right to recover the amount. Where defaults have been committed, therefore, this is the date for computation of the period of limitation. This view has been upheld by the Supreme Court in a decision reported in the case of Sree Bank Ltd. v. S.D. Roy & Co., . The Madras High Court had occasion to consider with regard to the change in law under the New Limitation Act of 1963 in the case of Oomar & Co. v. Md. Ghouse Sahib & Co., , wherein the Court held that if a right has accrued to a decree-holder under the old Act then the old Act is applicable and not the new Act. However, in cases where the period of limitation has been extended, the Madras High Court had clearly observed that it is the new Act that would apply. In either of these situations viewed at from either of the angles the position that applies is that the limitation would commence from January 1964, and consequently, the execution application made in November 1976 is clearly outside the period of limitation.

3. In this view of the matter, the impugned order dated 5-10-1983 is liable to be set aside. The rule is accordingly made absolute. In the circumstances of the case, there shall be no order as to costs. It shall be open to the petitioner by virtue of this order to apply for appropriate directions from the trial Court where the amount of Rs. 9,000/- has been deposited by him for refund of the amount to him.