A decree-holder can execute a decree for instalments after a default has occurred if the default clause is not mandatory but gives the decree-holder an option to demand immediate payment of the whole amount.

This is an execution appeal from an order passed in first appeal by the learned District Judge, Bhind on 16th September 1948, allowing the appeal and the objections of the judgment-debtor and dismissing the decree-holder's application for execution as time-barred.

2. The decree was passed in 1927 and in course of execution in 1937 a compromise was arrived at and on the basis of this compromise an order was passed by the Court on 27-7-1937 providing for payment of Rs. 200/- by the judgment-debtor within a period of 10 years by annual instalment of Rs. 20/- out of which Rs. 10/- were to be paid on 15th January and Rs. 10/- on 15th of May every year. It was further provided that in case of any default the entire sum could be recovered at once. It is admitted that the judgment-debtor did not pay any instalment and the decree-holder never made an application for execution before 1947. On 24-12-1947, the decree-holder for the first time applied for the execution of the decree for instalments. He mentioned in his application that he wants to get from the judgment-debtor seven instalments of Rs. 10/- each which have fallen due on (1) 15th May 1944, (2) 15th January 1945, (3) 15th May 1945, (4) 15th January 1946, (5) 15th May 1946, (6) 15th January 1947 and (7) on 15th May 1947. The decree-holder further alleged in the application that as a tenant of the judgment-debtor the previous instalments he had adjusted towards the rent which he was liable to pay to his landlord the judgment-debtor. The judgment-debtor objected to the execution of the decree and one of his objections was that the execution is time-barred. He also stated that he had filed a suit for arrears of rent against the decree-holder and the story of adjustment of the previous instalments towards rent is without foundation.

3. Apart from other considerations, the main question in this appeal is : can the decree-holder sleep over some of the instalments and apply for the remaining when they will be due specially when a default has taken place and when the decree-holder did not choose to enforce the default clause? In other words, the question is : when a single instalment is not paid did the default clause come into operation and did the decree cease to be an instalment decree and did it become, from the day of default, a decree for the payment of the whole decretal amount? or, could it retain, at the sweet will of the decree-holder, the nature of an instalment decree?

4. It is well settled now that where an instalment decree provides that in case of any default the entire sum could be recovered at once and no instalment is paid the decree-holder applying for execution of such a decree can rely on the decree as a whole, for the purpose of limitation, even though his application for the enforcement of the default clause may be barred. His claim to the instalments which are not time-barred is not barred on account of his failure to waive his right to claim the entire decretal amount on the first default. 'PEOPLES BANK OF NORTHERN INDIA v. AIJAZ ALI', 17 Luck 449.

5. It was observed in 'AJODHIA PRASAD v. BANSILAL', 11 Luck 276 by a Full Bench of the Oudh Chief Court :

"If the decree-holders do not choose to enforce within limitation the provision which was inserted for their benefit, they may be debarred from enforcing it afterwards, but they ought not to be prevented from recovering the future instalments, the claim in respect of which is made within time. If the subsidiary right of enforcing the default clause has become barred by time, it does not follow that the primary right relating to payments by instalments is also barred."

It therefore becomes clear that unless the decree leaves the decree-holder no option on the happening of a default but to execute the decree once and for all for the whole amount due under it, the decree-holder may execute it on the happening of the first, second, or any subsequent default, and limitation will run against him in respect of each