The decree-holder is entitled to execute the decree for instalments not barred by limitation, regardless of previous attempts to recover the entire decretal amount, as the option to recover the entire decretal claim on default is for the benefit of the decree-holder.

Pollock, J—On 15th November 1935 the appellant obtained a decree against the respondents for Rs. 1925 with future interest till realization. This amount was payable in four annual instalments on 16th December each year from 1985 to 1938 inclusive, with this condition:

In default of payment of any instalment in whole or in part the defendants will be liable to pay the whole amount remaining due with interest at once.

2. Nothing was paid. On 21st January 1936, after the first default, the decree-holder took out execution to recover the entire decretal amount, but owing to his failure to pay process-fees, the application was dismissed as wholly infructuous on 14th March 1986. On 14th December 1989 he filed the present execution application to recover the last three instalments due in December 1936, 1937 and 1938. That application has been dismissed as barred by limitation. Although in the past there has been some controversy on the point, it is now generally accepted, as stated in Rustomji's Law of Limitation, Edn. 5, at page 1811, that unless the decree clearly 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 is entitled to execute the decree for any of the instalments that are not barred by limitation and is not obliged (though he has the option to do so if he chooses) to sue out execution for the whole of the decretal amount immediately within three years from the date of the first default. The proviso giving the decree-holder the right to realize the entire amount due on the occurrence of the default in payment of an instalment is inserted for the benefit of the decree-holder and he is not obliged to exercise that option. That is the view taken by the lower appellate Court and its correctness has not been challenged in this Court.

3. The facts in Bhagwan Das v. Janki 28 All. 249 are similar to the facts in the present case. There the decree holder made an unsuccessful attempt in execution to recover the entire amount due under the decree after default had occurred, and his second application to recover the entire amount was dismissed on the ground that he had exercised his option to put an end to the instalments provided for in the decree and that having once elected to do so he could not fall back on the provisions of the decree relating to payment by instalments. That decision was followed in Pandurang v. Mahadeo, 1931 AIR(Bom) 263 In that case after two unsuccessful attempts to recover the entire decretal amount, a third attempt was held to be barred by limitation on the ground that the decree-holder by those two previous attempts had treated the instalment decree as at an end. The lower appellate Court has based its judgment on those two decisions. There is also to the same effect the decision in Gurdin Bhant v. Chhedi Bhant,1941 AIR(Oudh) 93 where Yorke J. remarked:

The moment the decree-holder exercised successfully the option to execute his decree for the whole amount, he at once converted the decree from being an instalment into an ordinary decree for the realisation of the full decretal amount. He could not again claim to realise any of the instalments.

4. I may remark that in that case the decree-holder had not succeeded in realising anything due on the decree. On the other hand, there is the decision of a Division Bench in Peoples Bank of Northern India Ltd. v. Aljaz Ali.

5. After the first default the decree-holder made no fewer than six applications, none of which he pursued, to recover apparently the entire decretal amount, though this is not clear. The seventh application was to recover the entire decretal amount and it was held that he was entitled to recover such instalments as had not become barred by limitation. The learned Judges relied on the majority decision in Joti Prasad v. Sri Chand, 1928 AIR(All) 629 where it was held:

If the decree-holders do not choose to enforce within limitation this