In an instalment decree under Section 36 of the Bengal Money Lenders' Act, 1940, the right to get restoration of possession of the mortgaged property arises on each default.

( 1 ) THIS appeal is against an order of the Subordinate Judge, Darjeeling dismissing an application under Section 47 of the Code of Civil Procedure by which the judgment-debtors objected to the execution of a decree as prayed for in an application made on the 10th September, 1954. The prayer there was in these words:"as the judgment-debtors defaulted in paying the instalments as provided in the modified decree the decree-holders pray that they be put into possession of the properties which are described in the schedule herein and which were mortgaged in favour of the plaintiffs-decree-holders and auction purchased by them in consequence of the execution of the re-opened decree, as provided in Section 36 (2) (e) of the Bengal Money Lenders' Act, 1940. "it appears that on an application under Section 36 of the Bengal Money Lenders' Act, a new preliminary decree was made by the Subordinate Judge, Darjeeling, on the 25th May, 1942. This decree was for a total sum of Rs. 35,295-12-7 but instalments were allowed and the relevant portion of the decree is in these words:"this will be payable in equal yearly instalments of Rs. 5000 each year in Chaitra commencing on 1349 B. S. Default of any one Kist will make the mortgaged property liable to be restored to the decree-holder A. P. again and the sale price of Rs. 65,000 will be set off against the outstanding balance of the new decree. . . . . In default of Kists, besides the above relief, it will be open to the decree-holder to have the final decree passed, if the Court so orders, after due notice as per Section 34 (1) (a) (ii) of the Bengal Money Lenders' Act, 1940 for the whole amount. The decree-holder A P. do restore possession of the mortgaged property to the Judgment-debtor within one month from this date, failing, the Judgment-debtor will have it through Court. "on appeal this Court was of opinion that the new decree made by the trial Court should be modified in two respects, namely, as regards the amount a mm of Rs. 1461/- should be deducted from the amount held payable by the trial Court and the decree would be for Rs. 33,834-12-7. As regards instalments this Court allowed the judgment-debtors to pay the balance in nine equal annual instalments This Court also pointed out that there was no necessity of making a preliminary decree as the properties had already been sold and only there will be an instalment final decree. It was ordered that the matter should be sent back to the trial Judge the order that the decree may be modified as indicated by this Court. A fresh decree was drawn up by the trial Court On the 4th June, 1945, in these words:"in pursuance of the orders passed by the Hon'ble High Court on the 5th January, 1945, in Appeal from Original Decree No. 241 of 1942 a final decree for Rs. 33,834-12-7 less the sum of Rs. 3500 which has already been paid by the judgment-debtors, that is, Rs. 30,334-12-7 (Rupees-thirty thousand, three hundred and thirty-four, annas twelve and pies seven) only being the amount of the principal and interest due on the mortgage bond, dated 16th January 1922, is drawn up. The judgment-debtors are allowed to pay the said amount in nine equal annual instalments. The first instalment is to be paid within the 15th April, 1945, and the subsequent instalments within the 15th April of each successive year. "in their application under Section 47 of the Code of Civil Procedure, the only substantial objection raised by the judgment-debtors was that the execution application was barred by limitation. That appears also to be the only point urged at the hearing of the matter. The learned Judge, relying on the decision of the Privy Council reported in Maung Sin v. Ma Tok, 54 Ind App 272: (AIR 1927 PC 146) (A), held that the application was not barred by limitation. In that view, he dismissed the application under Section 47 of the Code of Civil Procedure.

( 2 ) BEFORE us also the main contention pressed on behalf of the appellant is tha