Law: Civil Procedure Code (V of 1908)

Section: 11,3

Law: Limitation Act (IX of 1908)

Section: 75,182(7)

  Civil Procedure Code (V of 1908)----O. XX, r. 11 & O. XXIII, r. 3 - Compromise decree directing - payment by instalments-Direction for benefit of judgment-debtor-Default clause - Purpose - Judgment-debtor defaulting in payment of instalments-Decree-holder whether under compulsion to execute decree for whole decretal amount-Depends on terms of default Execution of such decree at option of decree-holder-Limitation Limitation Act (IX of 1908), Arts. 75 & 182(7).   When a debtor agrees to make payment by instalments or when the decree directs payment in instalments, the direction is for the-benefit of the debtor or the judgment-debtor. Similarly, the default clause is inserted to ensure regular payment of the instalments and is solely for the benefit of the creditor. The default clause can be expressed in so many ways, but unless it is in such terms which compels the decree-holder to execute the decree as a whole, it will always be at his option to execute the decree for the instalments due or for the entire decretal amount. There would be no compulsion on the decree-holder to execute it on default for the whole decretal amount. In this connection reference may be made to Article 75 of the Limitation Act. It provides that if default be made in payment of one or more instalments "the whole shall be due" and the period of three years runs from the time the default is made. Its language also leaves no option to the decree-holder but there are series of decisions on this particular Article in which it has been held that this clause also gives an option to the creditor which he can waive vide the third column of the Article.   The question, therefore, whether the decree-holder is under compulsion to execute the decree for the whole amount depends on the terms of the default. If it makes it obligatory on him to execute it for the whole amount, on default, an application for execution filed after three years of the default will be barred both in respect of the instalment, within time and for the whole amount. But if it is on the option of the decree-holder, the determination of the question of limitation would depend on the prayer made…