The main legal point established is that in the context of periodical payments in a mortgage suit, the right to apply accrues on each default, as every fresh default gives rise to a new cause of action.

King, J.

1. This appeal arises out of a mortgage suit in which a preliminary decree was passed in June, 1933. It provided for the payment of the mortgage money in seven annual instalments of Rs. 115 each in June of each year; and also that if there were default in the payment of any instalment the decree-holder might then proceed to sell the mortgaged property for the whole of the amount of the instalments still remaining unpaid, and also for the sum of Rs. 262, which he had provisionally relinquished. No instalment was in fact paid in either 1934. 1935. 1936 or 1937. On 22nd June, 1938, before the 1938 instalment had become due, the decree-holder applied for a final decree, conceding, however that though the first instalment had not been paid, he could not claim it as still due. The judgment-debtor contended that the application was barred by limitation. This view was accepted by the learned District Munsif of Koilpatti, but on appeal a final decree was granted by the learned Sub-Judge of Tuticorin. This is a second appeal by the first judgment-debtor.

2. It is common ground that the article in the Limitation Act which applies to this case is 181, and that time begins to run when "the right to apply accrues". The essential point at issue is whether that right accrues only once, on the occurrence of the first default, or as often as any default occurs.

3. The appellants learned advocate relies in the first place upon the language of the compromise decree itself. No doubt the language of the translation runs that in default of payment such and such amounts "shall be collected by the plaintiff" but I am satisfied that there is nothing at all in the original Tamil to connote the idea of compulsion, and it is dear from the judgment of the learned Subordinate Judge that it must have been practically the agreed background of the discussion before him that the respondent was given by the decree an option to enforce its penalties or to refrain from doing so. It would certainly require the most explicit language before one could accept the interpretation that a creditor who has agreed to make a concession should" bind himself to withdraw it the moment any default should occur.

4. The authorities which have been brought to my notice in this matter of the interpretation of Article 181, where periodical payments have to be made are almost equally divided. There is none in Madras which is binding upon me. Muhammad Islam v. Muhammad Ahsan I.L.R. (1894) All. 237 and Har Gopal v. Ram Rachhpal I.L.R. (1921) Lah. 155 lay it down that every fresh default gives rise to a new cause of action, and in my opinion the ante-penultimate paragraph in the judgment of the Privy Council reported in Maung Sin v. Ma Tok (1927) 53 M.L.J. 22 : L.R. 54 IndAp 272 : I.L.R. Bang. 422, is to the same effect. On the other hand Raichand Motichand v. Dhondo Laxuman I.L.R. (1918) Bom. 728 and Ram Prasad Ram v. Jadunandan Upadhia I.L.R. (1934) All. 921 are very definitely to the contrary.

5. It is the former of these two views which very emphatically commends itself to me. Raichand Motichand v. Dhondo Laxman I.L.R. (1918) Bom. 728 is mainly based upon the principle that provisions for payment in instalments are intended to benefit not the creditor but. the debtor; but I am unable with respect, to see why such a principle should continue to be applied when the debtor refuses to carry out those provisions, going even so far as--in the Bombay case--refusing to make any payment for six years. In Ram prasad Ram v. Jadunandan Upadhia I.L.R. (1934) All. 921, it is pointed out with undoubted force that the right to apply has certainly accrued whenever a first default occurs but the learned Chief Justice does not say why this fact should prevent a second right to apply from accruing when a second default occurs, and with respect I cannot understand what Mukerji, J., means when he says

A right to apply may accrue on several occasions but, for the purposes of limitation the first