JAGAT NARAYAN, J.—This is an execution second appeal by the decree-holder against an appellate order of the Civil Judge, Beawar, holding that the execution application was barred by limitation.

2. An instalment decree for Rs. 1,64.5/12/9 was passed against the judgment-debtor on 3.12.53. The amount was payable in instalments of Rs. 20/- per month commencing from 15.1.54. In default of payment of any two instalments the whole amount was to become payable in lump sum. The present execution application was filed on 24.5.57 for recovering the balance due on that date on the allegation that the judgment-debtor had paid all the instalments due upto 5.2.57 amounting to Rs. 760/- and had committed a default in the payment of three successive instalments falling due on 15.3.57, 15.4.57 and 15.5.57 respectively. The judgment-debtor filed an objection in which he alleged that he had not paid any amount and contended that the execution application was barred by limitation. Both the courts below have come to the finding that the instalments were paid by the judgment-debtor amounting to Rs. 760/- on the dates alleged by the decree-holder. The executing court held that the application was within time. But the appellate court held that it was barred by limitation, on the ground that the instalments which fell due on 15.3.54 and 15.4.54 were not paid in time that the balance due on 15.4.54 became recoverable on that date and the present execution application made on 24.5.57 was barred by limitation under Art. 182(7) as it was made more than 3 years after 15.4.54. Having heard the learned counsel for the parties I am satisfied that the decision of the appellate court is erroneous and that execution application is within time. I may here refer to my decision in Heera Lal Vs. Deep Chand (S.B. Civil Execution Second Appeal No. 14/59, decided on 21.7.1961) in this connection. There is conflict of judicial opinion about the article of Limitation Act which is applicable to the execution of an instalment decree with a default clause. So far as a suit based on instalment bond with default clause is concerned it is governed by Art. 75. The period of limitation is 3 years and time begins to run:—

"When the default is made, unless where the payee or obligee waives the benefit of the provision and then when fresh default is made in respect of which there is no such waiver."

The articles which have been applied to the execution of an instalment decree containing a default clause are Art.182 (7) and Art.181 which are in the following terms: —

Description of suit Period of limitation Time from which period begins to run

Art. 182

For the execution of a decree or order of any civil court not provided for by Article 183 or by S. 48 of the Code of Civil Procedure 1908 (V of 1908). Three years; or where a certified copy of the decree or order has been registered, six years. 7. Where the application is to enforce any payment which the decree or order directs to be made at a certain date, such date.

Art. 181

Applications for which no period of limitation is provided elsewhere in this schedule or by sec. 48 of the Code of Civil Procedure 1908 (V of 1908). Three years When the right to apply accrues.

3. So far as a suit based on an instalment with a default clause is concerned there is express provision in Article 75 laying down that time begins to run when the default is made unless the benefit of the provision is waived by the creditor. There is no similar provision contained in any article of the Limitation Act governing the execution of decrees. Some High Courts took the view that the principle underlying Article 75 is applicable to the execution of instalment decrees with a default clause. Others were opposed to importing the provision of Articles 75 into Articles 182 or 181 governing execution of decrees which did not contain any such provision. Now all the High Courts with the exception of the Bombay High Court have veered round to the view that the application for

Click Here to Read the rest of this document