JAGAT NARAYAN, J.—This is a judgment-debtors execution second appeal against an order of the appellate court holding that the execution application was within limitation.

2. An instalment decree was passed in this case on 24-2-56. The decretal amount was payable in instalment of Rs. 75/- per month. The first instalment fell due on 12-5-56 There was a default clause entitling the decree-holder to recover the balance of the amount in lump sum if there was default in the payment of 3 instalments. There was such a default before 14-7-60 and on 14-7-60 the decree-holder filed an execution application for recovering the balance due taking advantage of the default clauses. Nothing was realised from the judgment debtor in this execution application. The present execution application was filed on 1-4-64. The judgment-debtor filed an objection that it was barred by limitation. His objection was dismissed by both the courts below.

3. The present execution application has been filed for the recovery of the balance of amount and not for instalments falling due within 3 years of the date of the execution application. This execution application is evidently based on the default clause. It was held in Mishrilal vs. Budhraj(l) that an execution application for the recovery of a particular instalment was governed by article 182(7) of the old Limitation Act and an application for recovering the balance due under the default clause was governed by article 181 of the old Limitation Act. The corresponding article under the new Limitation Act is article 137. The period of limitaion is 3 years from the date when the right to apply accrues. The right to apply for execution of the balance of the decretal amount accrued before 14-7-60. The present execution application is therefore barred by limitation.

4. The appeal is accordingly allowed. In the circumstances of the case, I leave the parties to bear their own costs.

Click Here to Read the rest of this document