Syed Asrar Ahmed Vs. Bhanwar Lal and ors. - Court Judgment

Excerpt:
civil procedure code - waiver of late payment--due instalment paid late and accepted by decree holder--held, its implies that decree holder has waived late payment of instalment.;when the instalment as per the decree becomes due, is not paid on the due date and is paid late, but is accepted by the decree holder, it implies that the decree holder has waived the late payment of such an instalment.;(b) civil procedure code - right to recover full payment--waiver of--judgment debtor committed default in payment of instalments--late payment accepted by decree holder--held, decree holder waived his rights of recovering full amount.;even though the judgment debtor committed defaults in payment of instalments, but since the late payment was accepted by the decree holder, therefore, it will clearly mean that the decree holder respondent waived his right of recovering the full amount of decree, even though 2 defaults were committed in payment of instalments.;(c) civil procedure code - execution of decree and limitation act, 1963--article 136--limitation--two instalments fell in arrear in march 1961 and march 1962--new limitation act came into force on 1-1-1963--execution filed on 31-3-1969--held, execution could be filed within 12 years of instalments falling due and execution was within limitation.;the two instalments, which fell in arrear in march, 1961 and march, 1962 could have given the right to the decree holder to apply for the whole amount, he could have filed the execution within 12 years of the instalments falling in arrear under article 136 of the present limitation act as it came into force on 1-1-1963. by that time the decree-holder-respondent was entitled to apply for execution of his decree.;appeal dismissed with costs - - ajmer, by its order dated 26th april, 1973, by which it was held that the execution preferred on 21-3-1969 is perfectly within limitation. therefore, it could not have been filed under article 136 of the new limitation act, in 1969. it has been further argued that the decree-holder exercised his option to realise the amount in lump-sum while he filed the execution of his decree in june, 1958. thus, the execution was clearly barred by limitation. 500/- on 29-3-1959. therefore, the acceptance of this amount was clearly waiver of the exercise of default clause on that day day by the decree holder and only one instalmeat remained in arrears at that time. thereafter, the decree holder accepted two more instalments in the month of january, 1961 that fell in arrear in march, 1960. therefore, since these instalments were accepted, it clearly indicates that the decree-holder waived the exercise of option of default clause by acceptance of the amount of instalments in january, 1961. it has been further urged that thereafter, 2 instalments fell in arrear by march, 1962, therefore, the decree holder-respondent was entitled according to law to put the decree in execution on the basis of default clause in the compromise and such execution could have been filed under article 136 of the present limitation act upto 1974. this application has been filed on 21-3-1969 and thus, this application is well within the limitation. i am clearly of the opinion that when the instalment as per the decree becomes due, is not paid on the due date and is paid late, but is accepted by the decree-holder, it implies that the decree-holder has waived the late payment of such an instalment. waiver is a 'voluntary and intentional relinquishment or abandonment of a known, existing, legal right, advantage, benefit claim or privilege, which except for such waiver the party would have enjoyed' (see corpus juris vol. in the present case also even though the jundgment debtor committed defaults in payment of instalments, but since the late payment was accepted by the decree-holder, therefore, it will clearly mean that the decree-holder respondent waived his right of recovering the full amount of decree even though 2 defaults were committed in payment of instalments. it is, therefore, clear from the law cited above that the decree holder respondent was well within his legal right not to have exercised his option to recover the whole amount when the payment of certain instalments was made late and he impliedly waived his right to do so on accepting such amount. 7. in view of the above, i am of the view that the execution application filed by the respondent-decree-holder on 21-3-1969 is well within limitation and is not barred by time.inder sen israni, j.1. this is a civil execution second appeal against the judgment dated 26-4-1973 passed by the learned additional district judge, ajmer in civil execution appeal no. 324/70(33/72) setting aside the order dated 1-8-1970 passed by the learned civil judge, ajmer in execution case no. 29/69.2. for the decision of this appeal it is not necessary to give all details of the facts, out of which the present proceedings have come up suffice it to say, by an order dated 1-8-1970, it was held by the learned civil judge that the execution preferred by the decree holder ram das was barred by limitation. against this order an appeal was preferred before the district judge ajmer, which, on transfer was decided by the learned additional district judge. ajmer, by its order dated 26th april, 1973, by which it was held that the execution preferred on 21-3-1969 is perfectly within limitation. the proceedings have arisen from a decree through compromise. the terms of compromise were that the suit of the plaintiff was to be decreed against the defendant for rs. 3104/- and 5 annas and 3 paisa. which was made payable in the yearly instalments of rs. 500/- with future interest at the rate of 9% per annum. the first instalment was payable on 15-3-1965 and the subsequent yearly instalments were to be paid on 15th march every year and if two instalments fell in arears, the remaining whole amount of the decree was payable in lump-sum. out of every instalment, the amount was first to be adjusted towards interest and the remaining amount was to be adjusted towards principal.3. learned counsel shri ajay vajpai appearing for the appellant has urged that the present execution application preferred on 21-3-1269 was barred by limitation as instalments payable on 15-3-1958 and 15-3-1959 were not paid on due dates, as such the cause of action to realise whole of the amount accrued to the decree-holder on 15-3-1959 and that he could have preferred the execution within 3 years under article 181 of the limitation act latest by 15th march 1962. he has stressed that the new limitation act came into force w.e.f. 1-1-1963 and prior to that the execution was barred by limitation. therefore, it could not have been filed under article 136 of the new limitation act, in 1969. it has been further argued that the decree-holder exercised his option to realise the amount in lump-sum while he filed the execution of his decree in june, 1958. thus, the execution was clearly barred by limitation.4. learned counsel for the respondent shri dhingra on the other hand has urged that as per the compromise the whole of the amount could have been realised, if 2 instalments fell in arrear. he has stated that the first instalment of march, 1955 was paid in time on 7-3-1955. the instalment for the month of march, 1956 even though not paid in time, was paid after a fortnight, i.e., before the 2 instalments fell in arrear. this amount of second instalment was paid and accepted by the decree-holder. he has, therefore, urged that in this way, the decree holder waived the default committed by the judgment debtor. similar is the position regarding instalment of march, 1957, which was paid and accepted on 26-4-1957 by the decree holder. therefore, it has been urged by the learned counsel that when in the month of june, 1958, the execution was preferred for realising the whole amount, it will be seen that 2 instalments were not in arrears at any time, therefore, the execution was withdrawn by the decree-holder. it has been further stated that the above execution was not even brought to the notice of the judgment debtor as it was not pressed and withdrawn. therefore, it has been urged that on the basis of the execution application filed in the month of june, 1958, it could not be held that the decree holder exercised the option to implement the default clause as the same could not have been implemented in june, 1958 because no two defaults had been made in payment of instalments. in such a position, the decree holder can realise the subsequent instalments as they become due as it does not cause any prejudice to the appellants. it has been further urged that the instalments of march, 1958 and march, 1959 fell in arrears on 15th march, 1959, but the respondent decree-holder accepted the payment of rs. 500/- on 29-3-1959. therefore, the acceptance of this amount was clearly waiver of the exercise of default clause on that day day by the decree holder and only one instalmeat remained in arrears at that time. thereafter, the decree holder accepted two more instalments in the month of january, 1961 that fell in arrear in march, 1960. therefore, since these instalments were accepted, it clearly indicates that the decree-holder waived the exercise of option of default clause by acceptance of the amount of instalments in january, 1961. it has been further urged that thereafter, 2 instalments fell in arrear by march, 1962, therefore, the decree holder-respondent was entitled according to law to put the decree in execution on the basis of default clause in the compromise and such execution could have been filed under article 136 of the present limitation act upto 1974. this application has been filed on 21-3-1969 and thus, this application is well within the limitation.5. from the above discussion of the factual aspects of the payment of various instalments, it is clear that when the first execution was filed in the month of june 1958, the appellant-judgment-debtor had not committed any default in payment of 2 instalments to entitle the decree holder to file execution for recovery of the full amount as per compromise. therefore, the decree-holder did not press that application and withedrew the same. even notice of this execution application was not issued to appellant-judgment-debtor. at that time, as is evident, only one instalment was in arrear. therefore, in my considered opinion, this execution application filed in the month of june, 1958 cannot be considered to be election to exercise the option of the default clause in the compromise. no option can be exercised to recover the whole amount unless 2 defaults in payment of 2 instalments were committed by the judgment-debtor. therefore, the contention of the appellant that the decree-holder exercised his option to recover the full amount as per the compromise in june, 1958 and could have filed the present execution application only within 3 years of the dismissal of that execution application, is not tenable. learned counsel for the appellant judgment-debtor has drawn my attention to the case of (1) uma shankar v. jani khusalji jethji 1969 rlw 438. in this case the right to apply for execution accrued to the decree holder on 14-7-1960 but the same was filed on 1-1-1964, which was beyond 8 years, under article 137 (old article 181 of the old limitation act). this ruling has, therefore, no bearing on the present case i am fairortified in my opinion by the case of (2) sree bank ltd v. sarker dutt roy and company air 1966 sc 1954. in this case their lordships of the supreme court have held that in an instalments decree with a clause making the entire amount due on default by judgment-debtor to pay any one instalment, the decree-holder waives his option to proceed under the clause the right to apply for execution in respect of the further instalments under the decree would arise on the dates on which they respectively fall due. in the case of (3) ismail rowther v. gomakkaul rowther and anr. air 1942 mad. 679, it has been held that where an application for execution has been presented and retained even afterwards in the custody of the applicant it must be considered for the purpose of limitation as if it had never been made. i am clearly of the opinion that when the instalment as per the decree becomes due, is not paid on the due date and is paid late, but is accepted by the decree-holder, it implies that the decree-holder has waived the late payment of such an instalment. waiver is a 'voluntary and intentional relinquishment or abandonment of a known, existing, legal right, advantage, benefit claim or privilege, which except for such waiver the party would have enjoyed' (see corpus juris vol. 67). therefore, the waiver is express or implied; express when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles a release; implied when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which is so entitled. in the present case also even though the jundgment debtor committed defaults in payment of instalments, but since the late payment was accepted by the decree-holder, therefore, it will clearly mean that the decree-holder respondent waived his right of recovering the full amount of decree even though 2 defaults were committed in payment of instalments. in the case of (4) shiv lal and anr. v. devi lal : air1952all900 , it was held that the right to apply for final decree in respect of instalments not barred by limitation as individual instalments would remain intact inspite of omissions to take advantage of default clause. the default clause is to be interpreted liberally and for the benefit of the decree-holder. in the case of (5) mishri lal v. budh ram . it has been held by this court that if in the default clause the whole amount becomes payable in default of payment of any 2 instalments, the limitation would start, as to the whole balance unpaid, from the date of the two successive instalments unpaid, the decree-holder being entitled to execute the decree for the whole balance, if his application is within three years on that date. a proviso in an instant decree provides that in the even of default the entire amount shall immediately become due or payable, does not exclude the option in the decree-holder to take advantage of it or not to do so. it is, therefore, clear from the law cited above that the decree holder respondent was well within his legal right not to have exercised his option to recover the whole amount when the payment of certain instalments was made late and he impliedly waived his right to do so on accepting such amount.6. it will, therefor, be inferred that the two instalments, which fell in arrear in march, 1961 and march, 1962 could give the right to the decree-holder to apply for the whole amount he could have filed the execution within 12 years of the instalments falling in arrears under article 136 of the present limitation act as it came into force on 1-1-1963. by that time the decree-holder-respondent was entitled to apply for execution of his decree.7. in view of the above, i am of the view that the execution application filed by the respondent-decree-holder on 21-3-1969 is well within limitation and is not barred by time.8. in the result, the appeal is dismissed with costs. the trial court shall proceed with the execution application in accordance with law.