Qadam Singh Judgment-Debtor v. Nathu Singh And Another Decree-Holders

1. This appeal is in our judgment wholly without merit. A decree was passed against the appellant on 13th August 1910 for payment of Rupees 1,446 by six annual instalments of Rupees 241 payable on 1st August of each year. The decree further provided that in the event of default being made in the payment of any of the instalments the decree-holders would be entitled to realise the whole of the decretal amount with interest. The first application for execution was made on 21st February 1912 on the allegation that the first instalment has not been pail. That application was subsequently withdrawn upon the judgment-debtor paying to the decree-holders the amount of the first instalment. On 4th August 1915 the second application for execution was made on the allegation that the second and third instalments had been paid abut default had been made in the payment of the fourth instalment.

2. The present application for execution was made in 1917. The contention on behalf of the judgment-debtor, the appellant before us, in the Court below was that the application of 4th August 1915 was time barred, and this contention is based on the fact that the payment of the second and third instalments had not been certified to the Court as required by O. 21, R. 2 of the CPC. In our opinion this contention is without force inasmuch as the judgment-debtor, so far from denying that the second and third instalments had been paid, admitted by a petition in Court the payment of those instalments and only contended that he had paid the fourth instalment also and that no default had been made. As the judgment-debtor admitted payment it was not necessary for the decree-holders to prove that the second and the third instalments had been paid and that default had been made in payment of the fourth instalment only. No question of certifying to the Court of any payment made outside the Court arises in the circumstances of this case. In this view the rulings to which the learned vakil for the appellant has referred have no bearing on the present case. We express no opinion as to whether we agree or not with the decision of this Court in Chhattar Singh v. Amir Singh (1), which is one of the cases cited to us. We dismiss the appeal with costs, including fees on the higher scale.

V.B/R.K

3. Appeal dismissed.