JUDGMENT Raghubar Dayal, J.
1. This is a judgment-debtor's appeal against an order of the Civil Judge, Bareilly, partly dismissing his objection to the execution of a decree against him in favour of the respondent to the effect; that the application for the execution of the decree was time barred.
2. The simple money decree in suit was passed on 11-5-1932 for Rs. 7500. The decree allowed instalments of us. 25 a month. It provided :
"If the defendant fails to pay three consecutive instalments, the plaintiff will he at liberty to realise the whole decretal amount in one lot."
Instalments falling due on 11-7-1932 or thereafter were not paid.
3. The decree-holder applied on 5-9-1934 for the execution of the decree with respect to the entire decretal amount. This application was dismissed without satisfaction. Three other applications with similar prayers were similarly disposed of. The present application is the fifth application for execution, and was presented on 21-4-1945. It may be just noted here that these five execution applications were all presented within three years of the respective previous application.
4. The objection of the judgment-debtor was that the execution application was time barred on account of the provisions of Section 48, Civil P. C. This objection was accepted by the learned Civil Judge, who held that the application for the realisation of the entire decretal amount was time barred in view of the right to apply for such execution having accrued more than 12 years prior to the institution of this application for execution. The decree-holder has submitted to this order.
5. The learned Civil Judge, however, considered the application for execution to be within limitation with respect to all the instalments which had fallen due within 12 years of 21-4-1945, and ordered the execution to proceed with respect to HSECTION 3600. He disallowed the application for execution with respect to the instalments which were to fall due after the presentation of the application for execution. It may be mentioned here that in the operative portion of the order the words "within twelve years of the date of the application" seem to have been omitted by inadvertence, though it directs the execution to proceed with respect to ESECTION 3600 only.
6. It is against this order that this appeal has been filed.
7. The learned counsel for the appellant has argued that, once the decree-holder elected to execute the entire decree, his right to execute the instalment decree ceased. Ho further pointed out that, when no application for execution of the instalment decree was instituted within three years of the passing of the decree, the present application for execution as an application for execution of the instalment decree was time barred. Lastly, he urged that, if this application be taken to be within limitation to recover the instalments, execution could lie only with respect to the instalments which had fallen due within three years of the presentation of this application for execution.
8. The order of the Court below appears to be correct. The contention that the mere presentation of an application for execution to recover the entire decretal amount would put an end to the instalment decree does not appeal to us. The argument really is that the decree-holder having, made his choice once, cannot be allowed to revoke that choice or be given benefit which he could have got only by revocation of his choice. It is said that he is bound by what he once elects. In, this connection reference has been made to a number of cases, but they do not appear to go so far as to lay down that a mere expression in an application for execution of a desire to, execute the entire decree by enforcing the default clause would bar the 'decree-holder from executing the-decree for the instalments only, treating the instalment decree as remaining alive.
9. The first case is Bhagwan Das v. Janki, 23. aLL. 249. In this case the decree was for sale of mortgaged property and directed the amount of the decree to be paid by six annual instalments, and it provided that, in case of default in respect to any instalment, the decree-holder would be entitled to have it executed with respect to the whole amount. There was such default, and the decree-holder got an order absolute under Section 89, T. P. Act. He then applied for the execution of the decree in respect of the whole amount due & asked for the sale of the mortgaged property. The application was dismissed in default of prosecution. He then presented a second application, after three years from the date of the last application. The execution application was disallowed as being time barred. It was contended that as the original decree allowed the amount to. be paid by instalments the decree-holder could have received instalments and was entitled to apply for execution for such instalments as had remained unpaid. This argument was refuted by these observations :
"This might have been a valid contention had "the decree-holder not exercised the option o applying for enforcement of payment of the whole amount of the decree upon default being made in the payment; of some of the instalments. As I have already said, he did exercise that option and applied for an order absolute under Section 89. Again when on 23-2-1901, he applied for execution of the decree in respect of the whole amount of it, he sought in the exercise of his option to put an end to the instalments provided for in the decree. Those instalments could be adhered to only in the event of the decree-holder not exercising the option which the decree gave him. He having elected to put an end to the instalment arrangement cannot now fall back on the provisions of the decree relating to payment by instalments. His right to execute the decree arose when default was made in the payment of instalments, and he exercised that right. Therefore it is no longer open to him to say that he could give effect to the provisions of the decree and receive instalments."
These observations do not apply fully to the facts of the present case. What happened in that case was that the original decree for instalments did come to an end once the decree-holder got the order absolute under Section 89, T. P. Act. Subsequent to the making of the order absolute, the rights of the decree-holder were confined to such rights as were given under that order absolute. These observations mean that, by getting the order absolute, the decree-holder had given effect to his choice and had deliberately and effectively put an end to the instalment decree. They cannot be taken to mean that merely because a "decree-holder just desires to execute the decree in a certain manner by taking advantage of the default clause, he cannot ignore the default clause and fall back upon the original decree, when no such order had been passed by the Court as would put an end to the instalment decree. His application alone does not affect the judgment-debtor in any way.
10. The next case is Gulabrao Yeshwant v. Nagan Chelabhai, A. i. R. 192S Born. 326. The application for execution with respect to the entire decretal amount was held to be time barred in view of Section 48, Civil P. C. After such a finding it was observed :
"He (decree-holder) cannot be allowed to continue to execute for the instalments as they fall due, as on default the decree was no longer an instalment decree."
No reasons are given for these expressions of opinion.
11. The next case is Pandurang Vishvanath v. Mahadeo Vishweshwar, A. I. R. 1931 Bom. 263. This case supports the appellant's contention that when the decree-holder had relied on the default clause and applied for execution with respect to the entire decree previously, he could not be allowed to fall back on the instalment part of the decree. Reliance was placed on the aforesaid Allahabad and Bombay eases and also on the case of Shrinivas v. Chanbasapagowda, A. I. R. 1923 Bom. 201 (2), and no additional reasons were given for the view that the decree-holder having elected and applied twice to recover the entire amount should be held to have treated the instalment decree as at an end. The case reported in A. I. R. 1923 Bom. 201 (2) was not a case about an instalment decree with a default clause, but was a case, in which a certain claim was disallowed in view of the provisions of Order 2, Rule 2, Civil P. C.
12. The next case which supports the appellant is Gurdin Bhant v. Chhedi Bhant, 16 Luck. 495. In this case Yorke J. observed with respect to the contention that the application for execution might not have been time barred with regard to the instalments falling due on certain dates :
"In my opinion, even to that extent his appeal would have been entirely without force because 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 decree into an ordinary decree for the realisation of the full decretal amount. He could not again claim to realise any of the instalments as they fell due or rather within three years from the date on which they fell due."
No reasons for this view are given in the judgment.
13. On the other hand, in Peoples Bank of Northern India, Ltd. v. Aijaz Ali, 17 Luck. 449, a different view was taken. In this case a number of applications, for execution, taking advantage of the default clause, were filed and were consigned to record. The judgment-debtor objected to the last application and contended that it was barred by limitation. It was argued that the decree ceased to be an instalment decree as soon as the default clause applied and that accordingly time must be held to run from then. It was also contended that once the decree-holder elected to ask for one kind of relief provided by the decree, he cannot afterwards change his mind and ask for the other Bennett and Madeley JJ. held at page 453 :
"The question is one "on which there has been much diversity of opinion, but the more recent decisions, particularly those of this Court and of the Allahabad High Court, support the view that a 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. We do not consider that the decree holder's claim is time barred on account of his failure to waive his right to claim the entire decretal amount on the first default."
14. The next case is Ismail Rowther v. Gomakkani Rowther, A. I. R. 1942 Mad. 679. It was observed :
"The doctrine of election is not a mere legal prohibition to any party against ever changing his mind it is an equitable doctrine which is applied in law in order to prevent prejudice being done to the opposite party. If I have two courses open to me, both of which affected some other party, and I make it known to him by some deliberate act of my choice that I am intending to adopt one of these courses and not the other, then I cannot be allowed subsequently to change my mind to his prejudice. He will naturally adjust his future actions to my previous conduct which has become known to him."
In that particular case, the decree-holder's application for execution --as returned to him for the correction of certain defects and the decree, holder did not re-submit the application. No notice of the application was sent to the judgment-debtor. It was held that the decree-holder could change his mind and could proceed to enforce the decree as an instalment decree. This case cannot be taken to be an authority for the view that the crucial thing which binds a decree-holder and stops him from changing his mind is the communication of his having put in an execution application for the enforcement of the default clause to the judgment-debtor. What was held really was that the decree-holder would not be allowed to change his mind if his previous conduct had prejudiced the judgment-debtor in any way. It seems to have been presumed that in all cases in which the judgment-debtor is informed of the decree-holder's desire to enforce the default clause any change of mind of the decree-holder to enforce the decree as an instalment decree would be prejudicial to the interests of the judgment-debtor. This question of prejudice is not to be considered at this stage when the question for determination is whether a decree-holder's application for execution by enforcing the default clause puts an end to the instalment decree. This case, therefore, does not support the contention that such a conduct of the decree holder puts an end to the instalment decree. On the other hand, this case recognises the principle that, even after expressing his election to rely on the default clause, the decree-holder can fall back upon the instalment decree, though his right to do so is subject to there being no prejudice to the judgment-debtor.
15. The last case on the point is Firm Hardeo Dwarkadas v. Firm Birjraj Hariram, A. I. R. 1943 Nag. 170. This case is on all fours with the present case. On the happening of certain defaults the decree-holder applied to recover the entire decretal amount. He failed to pay the process fee and his application was dismissed as infructuous. He then filed a second application to recover three instalments. This application was dismissed by the execution Court as barred by limitation. On appeal it was held to be within limitation. Reference was made to the cases reported in Bhagwan Das v. Janki, 28 ALL. 249; Pandtwang Vishvanath v. Mahadeo Vishweshwar, A. I. R. 1931 Bom. 263; Gurdin Bhant v. Chhedi Bhant, 16 Luck 495; Peoples Bank of Northern India v. Aijaz Ali, 17 Luck 494 and Ismail Rowther v. Gomakkani Rowther, A. I. R. 1942 Mad. 679, which have been noticed above. It was observed :
"I do not understand on what principle it can be said that once the decree-holder has taken out execution to recover the entire decree be is subsequently debarred from taking out execution to recover the individual instalments. It is perhaps possible that the application to execute the entire decretal claim might amount to a representation to the judgment-debtor and cause the judgment-debtor to act in some way in which he would not otherwise have acted; if that were so, the decree-holder might be estopped from thereafter baking out execution to recover instalments. But, apart from any question of estoppel, I do not see why he should not be allowed to take out execution to recover the instalments merely because he has in the past attempted to recover the entire decretal amount, if taking out execution for the entire decretal amount he has recovered more than the instalments that were then due, the position might be different; but where be has recovered nothing in the past, I do not see on what principle he should be held to by barred from recovering instalments that have fallen due. The decree, which remains unaltered, is one primarily for payment in instalments, and the option to recover the entire decretal claim on the occurrence of the default is a provision inserted for the benefit of the decree-holder who may exercise that option or cot as he chooses "
This, we may say with respect, lays down the law on the point correctly.
16. A decree-holder could be stopped only from changing his mind if his conduct had prejudiced the judgment-debtor. Whether prejudice had been caused will in every case be a question of fact. The mere fact that an execution application is filed and is consigned to record on account of want of prosecution cannot in any way prejudice the judgment-debtor. Such applications in the majority of cases are filed just to save limitation. It is only when a judgment-debtor establishes that due to the presentation of such an application ho felt that any payment of further instalments by him would not be accepted by the decree-holder in taking out execution for the entire decretal amount. No such allegation is made in the present ease. We are of opinion that a mere communication to the judgment-debtor of the decree-holder's taking out execution by enforcing the default clause would not justify the conclusion that the judgment-debtor must have acted in some manner that any further change of mind by the decree-holder would, affect him prejudicially. It is for the judgment-debtor to show in every case that his conduct was influenced by the alleged representation of the decree-holder and that the change in the attitude of the decree-holder would affect him adversely.
17. We, therefore, hold that the decree-holder respondent is not barred from having the benefit of executing his decree against the judgment-debtor as an instalment decree which has not come to an end by his previous applications for execution to recover the entire decretal amount,;
18. It was argued that the previous applications for execution to recover the entire decretal amount were not applications to recover the instalments which had fallen due and that, therefore, there being no application for execution to recover the instalments, the execution application considered as an application for executing the decree with respect to instalments which had become due, and particularly with respect to instalments which had become due more than three years prior to the presentation of the application, was time barred. We do not agree with this contention. An application for execution to recover the entire amount must be deemed to include a prayer for execution of the smaller amounts relating to the instalments which had fallen due. The decree is one, and one only. It remains an instalment decree so long as the default clause is not effectively enforced and the right of the decree-holder to execute the decree as an instalment decree comes to an end. Any application for execution, whatever be the nature of prayer, would he a valid application for execution and will be sufficient to save limitation for subsequent application. All execution applications by the decree-holder respondent as noted above, were filed within three years of the disposal of the previous application and, therefore, the present execution application is within time with respect to the instalments which had fallen due within 12 years prior to the presentation of this application.
19. It follows that the order of the Court below is perfectly correct. The appeal is accordingly dismissed. No order is made with respect to costs, as nobody appears for the respondent.