JUDGMENT <NAME>, J.

1. The decree, execution of which has been held by, both the lower <ORG> to be barred by the law of limitation, was one for partition of immoveable property passed on the 30th of June 1900, and directed that the plaintiff should not be entitled to execute it until he had paid <ORG> fees. The present application for execution was made on the 27th of June 1906 by the plaintiff, who with it paid the <ORG> fees into <ORG> in fulfilment of the condition precedent to his right to execution. Prima facie the application is barred, having been made more than three years after the date of the decree. But the application is sought to be brought within time by reason of an application made for execution on the 27th of June 1903. The lower <ORG> have held that that application does not help the plaintiff, because it was not one made in accordance with law, as required by Article 179 of Schedule II to the Limitation Act . In the present case what the decree directed was that the plaintiff should not be entitled to execution-that is, to the partitioning off of his share and its allotment to him-unless he paid the <ORG> fee on that share, The payment was prescribed as a condition of the partition, not to the making of an application for it. There was nothing in the decree to prevent the plaintiff from applying for execution on one day and paying the <ORG> fee on any day subsequent before the disposal of the application by the <ORG>. The application itself cannot be said to have been not in accordance with law merely because it was not accompanied by a payment of the <ORG> fee. This view is in accordance with the principle of the decision of this <ORG> in <NAME> v. <NAME> (1891) I.L.R. 16 Bom. 480 which is followed by the Madras High <ORG> in <NAME> v. <NAME> (1906) I.L.R. 30 Mad. 28. But it is urged for the respondents that the application of the 29th of June, 1903 was not in accordance with law, because it asked the <ORG> to do what it was not competent to do-that is, it asked the <ORG> to order partition to be effected without payment of the <ORG> fee directed by the decree as a condition of such order. And in support of this argument <NAME> v. <NAME> (1889) I.L.R. 12 All. 64, <NAME> v. <NAME> (1905) I.L.R. 27 All. 619, <NAME> v. <NAME> (1906) I.L.R. 28 All. 387 are cited. It is true that, according to these decisions, as also according to <CITATION> (1888) I.L.R. 13 Bom. 237, an application for execution, which asks the <ORG> to do what it has no power under the decree to do, is no application for execution at all. The reason is that an application for execution of a decree to be in accordance with law must ask for something within the decree and not outside it. Applying that test here, what the plaintiff asked the <ORG> to do by his application of the 29th of June 1903 was not outside the decree. It was within the competence of the <ORG> to order partition on <ORG> fee being paid as directed by the decree. The decree directed that no partition should be effected in execution unless <ORG> fee were paid. Upon the plaintiff's application it was competent for the <ORG> to order that the execution should begin on <ORG> fee being paid within a certain date. No doubt the <ORG> passed no such order, but dismissed the application for execution on the ground that <ORG> fee had not been paid; but all the same it was competent to the <ORG> to pass an order for payment prescribing a date for it. On these grounds the <ORG> must be held to be within time. The decree is reversed and the darkhast remanded for disposal according to law. Costs of the darkhast hitherto incurred including those of this second appeal to be paid by the respondents.

2. Mr. <NAME> argues that the point on which I have held that the present darkhast is not barred by limitation is res judiuata inasmuch as this very point was substantially decided by this <ORG> against the present appellant in Second Appeal No. 119 of 1904. That second appeal arose out of an application for execution of this very decree, which both the <ORG>s below had dismissed because the appellant had not paid the <ORG> fee. The second appeal was decided by <NAME> and myself, and we confirmed the order of the lower <ORG>s dismissing the application. There is no written judgment. Mr. <NAME> for the appellant reminds me that the ground on which <NAME> and I confirmed the order was that the plaintiff had no right to execution without payment of <ORG> fee. And it was so, if I recollect rightly. That was no adjudication either that the application then made or any previous application was not in accordance with law for the purposes of limitation or that the condition in the decree as to <ORG> fees was of such a character that the <ORG> fee must be paid first and the application for execution could only be made after-wards.


PETITIONER: MANAGEMENT OF PANITOLE TEA ESTATE Vs. RESPONDENT: THE WORKMEN DATE OF JUDGMENT18/02/1971 BENCH: DUA, I.D. BENCH: DUA, I.D. SHELAT, J.M. CITATION: 1971 AIR 2171 1971 SCR (3) 774 1971 SCC (1) 742 ACT: Industrial Dispute-Dismissal of workmen-Order of reinstatement by <ORG>-Reinstatement of compensation- Circumstances justifying reinstatement-Constitlution of India-, Art. 136- Interference by Supreme <ORG>. HEADNOTE: In the course of a domestic enquiry on a charge of pilferage against B a' part time clerk who was incharge of a godown of the appellant a chit was produced suggesting collusion with him of H another workman, The appellant instituted a domestic enquiry against the workman and he was dismissed. On a reference of the Industrial Dispute the <ORG> held that the contents of the chit were too vague and were procured only to harass the workman for no fault of his, that the domestic enquiry was violative of the principle of natural justice, and its findings perverse and without any evidence to support them. Consequently it ordered the re- instatement of the workman' The management appealed to his <ORG> contending that instead of reinstatement the workman should be paid compensation. It also raised the plea that it had lost confidence in the workman. HELD : The present case is not one in which this <ORG> would be justified in interfering, on appeal under Art. 136 of the Constitution, with the order of the tribunal. The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the Judicial discretion of the <ORG> or the <ORG>, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fair play towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working ' of the establishment. Legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employee, the nature of the alleged conduction which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. These factors are merely illustrative. Each case has to be decided on its own facts and no hard and fast rule can said down to cover generally all conceivable contingencies. Proper balance has to be maintained between the conflicting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress. [780 D] There was no evidence to conclude that the management lost confidence in the workman. If the workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside and on the facts it is not possible to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman, he 775 is entitled to be reinstated. The suggestion that having regard to the nature of the proceedings against the workman the management has lost confidence was acceptable. [782 F] If' the workman's dismissal was wrongful then merely because proceedings for adjudication of the industrial dispute have taken a long time (10 years) was by itself no reason for not directing his reinstatement if it was otherwise justified being in accordance with the normal rule. [782 G] JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1137 of 1970.

Appeal by special leave from the award dated October 30, 1969 of <ORG> in Reference, No. 20 of 1964.

<NAME> and <NAME>, for the appellant. <NAME>, for the respondents.

The Judgment of the Court was delivered by <ORG> In this appeal special leave was limited to the question whether relief by way of payment of compensation should' not be substituted for the relief by way of reinstatement granted by <ORG> to the workman, <NAME>, <ORG>, Clerk.

The Panitole Tea Estate belongs to <ORG>, Panitole. Depot Line was one of the Out Gardens under this Tea Estate and it had a separate godown. One <NAME>, a part-time clerk was in charge of this godown. Ammonia sulphate fertiliser was stored in this godown, 970 bags having been received there between December 12, 1960 and January 5, 1961. Pursuant to receipt of an anonymous letter that there was pilferage of these bags the stock was checked and 89 bags were found missing. In the course of the domestic enquiry against <NAME> a chit (Ex.

12) was produced by him which suggested <NAME> collusion with <NAME> in this affair. <NAME> was accordingly also charge sheeted and after domestic enquiry he was dismissed with effect from March 23, 1961. This order of dismissal of <NAME> gave rise to an industrial dispute which was duly referred to <ORG> at Dibrugarh. <ORG> by its award dated October 30, 1969 held that the contents of Ex. 12 were too vague to connect <NAME> with the offence charged. According to <ORG> the management had procured this exhibit only to harass <NAME> for no fault of his. The domestic enquiry was also found to be violative of the principle of natural' 77 6 justice and it conclusions perverse, there being no evidence to support them. <NAME> was accordingly held entitled to reinstatement with all the back wages and benefits. The present appeal is directed against this order and, as observed earlier, the only question we have to decide is whether <NAME> should be reinstated or he should be paid compensation instead of reinstatement. The dismissal of <NAME>, it may be pointed out, was not challenged by him and that order became final. In this appeal we are not concerned with his dismissal.

On appeal in this <ORG> <NAME> has submitted that the management has lost confidence in <NAME> and it would be unjust and improper to force his reinstatement as a store clerk ,on the management after a lapse of ten years. The learned counsel offered to pay to the workman any reasonable compensation as may be ordered by this <ORG>. Reliance in support of this submission against the order of reinstatement was placed on two recent decision of this <ORG> <ORG> v. <NAME>) and <CITATION> (2). In the first case special leave granted by this <ORG> was also limited only to the question whether the relief granted to the workman concerned should have been reinstatement or compensation. On a consideration of the facts and circumstances of that case this <ORG> had set aside the order of reinstatement and directed the company to pay compensation to the workman concerned. ,Our attention has been drawn to some of the observations made in that case. This <ORG> said there :

"In the present case we are of the view that reinstatement directed by the tribunal was inexpedient. The respondent had served the company in all for a period of twelve months. It was not as if he had been induced to give up any employment he was engaged in for joining the service of the appellant-company.

The company's establishment in Delhi was comparatively a small establishment. There can be no doubt that the position of a stenographer in such an establishment would be one of confidence and trust as he would be taking down dictation and typing out all kinds of matters including sometimes confidential and even secret matters. For example, a report of the working of this branch to the company's headquarters by the branch manager, or a report as regards the working of other rival insurance companies in Delhi area, or a report regarding promotion and even demotion of some of the members of the staff of the branch office, and such other matters would be of a highly confidential (1) [1970] 1 L.L.J. 63.

(2) [1970] 1 L.L.J.228.

nature. If the branch manager were, for cm reason or the other to lose confidence and trust in stenographer working under him, it would obviously be unpossible for him to give dictation on such matters to such a stenographer. On the assumption that the respondent was made to take dictation and type out letters in connexion with other concerns in which the appellant company was interested and the respondent was not paid any extra remuneration for such work, the respondent was, on his 'admission retaining with him surreptitiously copies of those communications. As the tribunal has remarked, the respondent did so in order to preserve evidence, that he was made to take down letters relating to concerns other t han the appellant-company. Whether in terms of his employment as a stenographer the regional manager could take such work or not is a matter in which we need not go, but he did admittedly retain with him copies of as many as 32 such communications which he exhibited as Exs. W. 10 to W. 42. These copies were clearly the property of the company which the respondent in no event could retain in his possession without the consent of his employers. If the regional manager were to entertain a feeling that, if reinstated, the respondent would in future also retain with him copies of documents of a confidential nature whenever the respondent felt that such retention would be of use or advantage to him, such a feeling on the part of the regional manager that he can no longer trust the respondent with any confidential matter cannot be regarded as altogether unjustified. The regional manager might well feel that if the respondent was capable of collecting evidence against the company, he might in future collect perhaps evidence of a more dangerous, and harmful nature. Obviously, if he cannot repose confidence in the respondent, if reinstated, he cannot make any use of his services, as a stenographer. In the circumstances, we think that the tribunal ought not to have directed his reinstatement despite its conclusion that the termination of his services was wrongly made, but ought to have awarded suitable compensation instead." in the second case this <ORG> observed The question, however, still is whether the tribunal was, in the circumstances of the case, justified in directing reinstatement. It is true that some of the decisions of this <ORG> have laid down that where the discharge or dismissal of a workman is not legal or justified, the relief which would ordinarily follow would be reinstatement. The <ORG>, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make reinstatement inexpedient or improper. The <ORG> has, therefore, to exercise its discretion judicially and in accordance with well recog- nised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the <ORG> were to exercise its discretion in disregard of such circumstances or the principles laid down by this <ORG> it would be a case either of no exercise of discretion or of one not legally exercised In either case the High <ORG> in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the <ORG> has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with the well- settled principles made. If the High <ORG> were to do so, it would be a refusal on its part to exercise jurisdiction.", And again:

"The <ORG> no doubt felt that it was not established whether the investigation and the report following it were properly done and made, that the company ought to have disclosed it to the workman and given him an opportunity to vindicate himself and that the non-

disclosure of the report made the termination illegal and unjustified. That may or may not be right. But what was relevant, at the stage when the <ORG> came to decide what relief the workman was entitled to, was the question whether the management genuinely apprehended as a result of the report that, it would be risky to retain the workman in the company service They may have gone wrong in the manner of terminating the workman's service as held by the <ORG>. But, if the management truly believed that it was not possible to retain the workman in the company's service on grounds of security and consequently could not place confidence in him any longer, the present case, would be one of those exceptional cases where the general rule as to reinstatement could not properly be applied. This of course does not mean that in every case where the employer says that he has lost confidence in the workman, and, therefore, has terminated his service that reinstatement cannot be granted and the <ORG> has to award compensation. On the other hand, if on an examination of all the circumstances of the case, the <ORG> comes to the conclusion that the apprehensions of the employer were genuine and the employer truly felt that it was hazardous or prejudicial to the interests of the industry to retain the workman in his service on grounds of security, the case would be properly one where compensation would meet the ends of. justice.

On a consideration of all the circumstances, the present case, in our' view, was, one such 'case., The <ORG> exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion at all. There is ample authority, to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. (See <NAME>, Judicial Review of Administrative Action (2nd ed) pp. 324-325. One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well-settled principles laid down in decisions binding on the <ORG> to whom the discretion is entrusted. The refusal by <ORG> to interfere was equally mechanical and amounted to refusal to exercise its jurisdiction. Its order, therefore, becomes liable to interference."

<NAME> has argued that in the present case there was exercise of judicial discretion by the <ORG>, <ORG> and impugned order was made mechanically without considering the relevant circumstances and applying its mind to the question as to which of the two reliefs was more appropriate. On behalf of the respondents it is submitted that <NAME>, the workman concerned in this case, is innocent and the management was found by the <ORG> <ORG> on evidence to have resorted to unfair labour practice. The chit, Ex. 12, was also held not to be in the handwriting of <NAME>. It is further emphasised that criminal proceedings 'Were also started against <NAME> but he was discharged in the criminal case for want of evidence implicating him. The respondent's learned counsel has, in support of his submission,, drawn our attention to <CITATION> (1), <ORG> v. Its Employees(1) and <CITATION> . (3), (a decision High <ORG>). In the Punjab (1) 1 S.C.R 806. (2)  11 L.L.J. 107 (S.C.) (3) 1 L.L.J 529 National Bank case(1) it was observed that the propriety of reinstatement in a case of wrongful or illegal dismissal-is' normally a question of fact and where the industrial tribunal on a proper consideration of the relevant factors refuses to pass such an order the Supreme <ORG> would be reluctant in the absence of any general or substantial question of law to interfere under Art. 136 of the Constitution. According to the counsel where reinstatement has been ordered by the court or tribunal in an industrial dispute arising out of dismissal of a workman this <ORG> should, in 'the absence of special circumstances, decline to interfere with that order on special leave appeal. Support from the case of <ORG> (2) is sought for the contention that reinstatement is the normal rule when dismissal is held to be wrongful and it is immaterial that the employer has since employed other workmen. The case of <ORG>(,) follows the observations of this <ORG> in the case of <ORG> (1), <ORG> (2) and <CITATION> (4). In our opinion the present case is not one in which we would be justified in interfering on appeal under Art. 136 of the Constitution with the, order of the <ORG>. The question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to. be paid compensation is a matter within the Judicial discretion of the <ORG> <ORG> or the <ORG>, dealing with the industrial dispute, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fairplay towards the employee on the one hand and interest of the employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitimate interests of both of them have to be kept in view it the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employee, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it 'is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies. Proper balance has to be maintained between the conflicting claims of the employer and the employee (1)  1 S.C.R.806. (3)  1 L.L.J. 529. (2)  2 L.L.J.107 (S.C.). (4)  1 L.L.J.504. 78 1 without jeopardising the larger interests of industrial peace and progress. In <ORG> case(1) this <ORG> substituted the order of reinstatement by an order of payment of compensation on the ground that the police report and the security officer's recommendation to the Company showed that it was not desirable for reasons of security to reinstate the employee., In that case it was observed :

"As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedient. These were the cases where there had been strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was, found to have been guilty of an activity subversive of or prejudicial to the interests of the industry. These cases are to be found in <CITATION> (1); Workmen of Charottar Gramodhar Sahakari Mandali Ltd. v.- Charottar Gramodhar Sahakari Mandali Ltd.(3); <CITATION> (4)) and <CITATION> (5). These are however, illustrative case,% where an exception was made to the general rule. No hard and fast rule as to which circumstances would in a given case constitute an exception to the general rule can possibly be laid down as the <ORG> in each case keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice."

The general rule of reinstatement in the absence of special circumstances was also recognised in the case of <ORG> v. The Presiding Officer, <ORG>. (6) and has again been affirmed recently in <ORG>, W.B. & ors. (7). In Messrs <NAME>) it has been emphasised that no hard and fast rule as 'to which circumstances would establish an exception to the general rule could be laid down and the <ORG> must In each case decide the question in a spirit of fairness and justice in keeping with the objectives of industrial adjudication. (1)  I.L.L.J. 288. (2) (1969) 3 S.C.R. 457. (3) C.A. 382/66 d/14.-8-1967. (4) C.A. 5161-1966 d/26-10-

(5) [1970] I.L.L.J.63. (6) C.As. 1070-1071/1963 d/27-10-64. (7) C.A. 1607/1966 d/3-2-1971.

78 2 In the present case <NAME> has laid main stress on the submission that the management has lost confidence in <NAME>'s integrity and it would be wholly improper to force his rein.statement on the management. The store of which this workman was in charge, according to the learned counsel, contains ,goods worth lakhs of rupees and in the absence of the requisite confidence in his integrity the order of reinstatement is likely to harm the cause of industrial peace in the appellant concern. The appellant has expressed willingness to pay any reasonable, amount by way of compensation. We have in support of the plea of want of confidence been taken through the correspondence between the management and <NAME>. From that correspondence we are unable to conclude that the management lost confidence in <NAME> because of the lapses mentioned therein. It appears that it was only when the management suspected <NAME>'s collusion with <NAME> that the management felt that his integrity was questionable. That chit having been found not to be in <NAME>'s handwriting and <NAME>'s dismissal having been held to be wrongful we are unable to sustain the plea of want of confidence raised by <NAME>. It is significant that no such plea was sought to be substantiated before <ORG>. It is undoubtedly true that the store of the Tea Estate would contain goods of substantial value and a person really suspected of being untrustworthy may not justifiably be forced on the unwilling employer, but that aspect requires determination on facts which should have been properly placed before <ORG> and a finding secured after appropriate trial. The suggestion that having regard to the nature, of the proceedings against <NAME>, the management has lost confidence is unacceptable. A similar argument was repelled in the case of Assam, Match Co.(1). If the workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside and ,on the facts it is not possible to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman he is entitled to be reinstated. The next. argument that <NAME> should not be forced on the management after a lapse of ten years is equally unacceptable because if his dismissal was wrongful then merely because proceedings for adjudication of the industrial dispute have taken a long time is by itself no reason for not directing his reinstatement if it is other- wise justified being in accordance with normal rule. A similar contention was also repelled in the case of <ORG>(,) In <ORG> case(1) also this Court observed that in the ,case of wrongful dismissal, discharge or retrenchment a claim for reinstatement cannot be defeated merely because time has elapsed or that the employer has engaged fresh hands. We are, therefore, unable on the existing record to sustain the appellants sub- (1) C.As. 1070-1071/1963d/27-10-64. (2) [1960] I.L.L.J. 504 mission that the order of reinstatement made by <ORG> suffers from any legal infirmity justifying its substitution by an order of payment of compensation to the workman. A suggestion has been thrown by <NAME> that in all probability the employee must have secured employment elsewhere as he could not have remained idle all these years an payment of compensation in place of reinstatement would, therefore, cause him no prejudice. On behalf, of the employee it is denied that he had been employed anywhere else during this period. In our opinion, this matter being controversial should have been raised before <ORG> and we are not in a position to express any opinion on it in the present proceedings.

The appeal accordingly fails and is dismissed. In the cir- cumstances of the case there will be no order as to costs in this Court.

Y.P. Appeal dismissed. L1100Sup.CI/71


JUDGMENT

1. Second Appeal No. 801 and Second Appeal No. 802 of 1920 are plaintiff's appeals arising out of a suit for sale, on the basis of a mortgage-deed, dated the 16th of November 1905, executed by the father of the present defendants in favour of the plaintiff. The defendants did not put in an appearance in the Court of first instance and no written statement was filed on their behalf. The learned Subordinate Judge, relying on a clause in the mortgage-deed, which entitled the mortgagee to sue for the whole amount of principal and interest on default of payment of annual interest, held that the claim to enforce the charge was barred by time under Article 132 of the Limitation Act , but he was, however, of opinion that the personal remedy was not barred. He, accordingly, granted the plaintiff a simple money decree.

2. Both parties appealed to the learned District Judge who, holding that the personal remedy also was barred, dismissed the whole suit. The plaintiff appealed to this <ORG> from the lower Appellate <ORG>'s decrees and his appeals came up for hearing before <ORG> of this <ORG>, which, in view of some apparent conflict of opinion, has referred these cases to a Fall Bench. There are only two points which arise for our determination:

(1) Whether the plaintiff's claim to enforce the charge by sale of the mortgaged property is barred by time?

(2) Whether, in any case, he is entitled to a simple money-decree?

3. As some argument has turned on the actual wording of the document in suit, we think it desirable to quote the operative portion of it in full. It is as follows:

I hereby covenant and give in writing that I shall pay the money aforesaid with interest at the rate of 8 annas per cent. per mensem, within a period of twelve years and shall pay interest from year to year. In case of non-payment of interest from year to year, the creditor has the option to add the interest to the principal and to charge interest thereon at the aforesaid rate or to recover through <ORG> principal and interest from me and hypothecated property and also from my other moveable or immoveable property and from my person within the stipulated period. The period fixed shall not bar the claim. In case of non-payment within the stipulated period, the creditor shall have the power to recover the money, principal and interest, together with compound interest from me, mortgaged property or other moveable or immoveable property of mine. If I am not able to pay the money within the stipulated period and with the consent of the creditor the money remains unpaid, the interest and com-pound interest at the aforesaid rate shall continue to run at the stipulated rate till the date of realization.

4. It is clear from the terms of this document that the ordinary period fixed for payment was 12 years, and, if no default were made, the mortgagee would not have been entitled to sue for the recovery of his money before the expiry of the period fixed. If, however, a default were made in payment of the annual interest, it would be open to the mortgagee, if he so desired, to sue for the whole amount of principal and interest; and it is clear that, in that case, the mortgagor could not succeed on the plea that the claim was premature. On the other hand, there is nothing in the deed which makes it obligatory on the mortgagee to sue as soon as a default is made.

5. Now, there can be no doubt that a suit for sale on the basis of a mortgage-deed is one to enforce payment of money charged upon immoveable property within the meaning of Article 132 of the Limitation Act of 1908. The previous decisions to the contrary were overruled by their Lordships of <ORG> in the case of <CITATION> 30 M. 426 : 9 Bom.L.R. 1104 : 4 A.L.J. 625 : 11 C.W.N. 1005 : 6 C.L.J. 379 : 2 M.L.T. 333 : 17 M.L.J. 444 : 34 I.A. 186 (P.C.). This view has been accepted by the <ORG> and the wording of Article 132 has remained unaltered and a special period of grace provided for in Section 31 of the new Act.

6. It being beyond question that Article 132 applies, we have to look So the words in the third column of that Article in order to determine the point of time from which limitation begins to run. The period of limitation is 12 years from the time "when the money sued for becomes due." We have, therefore, to answer the simple question, when did the money become due in the present case? Obviously, money becomes due as soon as it becomes payable by the mortgagor to the mortgagee, that is to 'say, as soon as it can be legally recovered by the mortgagee. The question whether the mortgagee chooses to wait and does not sue at once, is wholly immaterial. The money might be due and yet the mortgagee may not like to call it in at once and may safely wait for a period of 12 years. Examining the terms of the mortgage-deed in this light, it is obvious that, as soon as the first default was made, a right accrued to the mortgagee to sue for the whole sum with interest. Whether he chose to avail himself of it or not, is another matter. On default having been made, the money certainly did become due at once; the mere circumstance that the creditor had the option of not sailing in the money cannot wipe out the fact that the money had in fact become due.

7. The view expressed above is undoubtedly in consonance with the rule of law prevailing in England In <NAME> v. <NAME> (1842) 62 E.R. 423 at p. 426 : 4 Q.B. 519 : 3 G. & D. 402 : 12 L.J.Q.B. 134 : 17 Jur. 302 : 114 E.R. 994, it was remarked: "If he those to wait till all the instalments became due, no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it. The Statute of Limitation runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified in the Statute." This case was followed by <ORG> in <NAME> v. <NAME> (1891) 2 Q.B. 509 : 60 L.J.Q.B. 619 : 65 L.T. 329 : 39 W.R. 262, where money had been lent for a fixed period of five years subject to the power to call in the same at an earlier period" tinder certain events including a default in the payment of any quarterly interest for 21 days. It was held in that case that a claim brought more than six years after the first default was barred by time, inasmuch as the cause of action arose on the first default, and that the time began to run from the earliest time at which the plaintiff could have brought her action. These cases are accepted laws in England (vide, <NAME> Laws of England, Volume XIX, page 44).

8. It has been very strongly urged before us that the effect of holding that time begins to run from the first default would be to strike out an important clause under which the mortgagee is given the option to wait, and this would be going against the express intention of the parties. But it is not quite easy to see what is really meant by saying that the mortgagee has the option of suing or not suing. In slither case, be is not bound to sue at once; he can, in fact, wait for 12 years. If by the word "option" is meant that the parties agree that, although the money does become recoverable. yet the Mortgagee can wait and at the same time keep the Statute of Limitation in abeyance, then it would be a case of contracting cut of the Statute. An agreement of this kind can never have the effect of preventing the period of limitation from running out. But, as a matter of fact, there is in the deed no covenant that limitation will not begin to run, and the option after all might not mean anything more than that a forbearance to sue would not disentitle the mortgagee from claiming interest, but that interest would continue torun though no suit is brought for some time. If this only in the intention of the parties, then no difficulty whatsoever arises.

9. Our attention has not been invited to any Pronouncement of their Lordships of. <ORG> which would cover the point arising in this case. The only <ORG> case to which reference has been made is that of <NAME> v. <NAME>. 1 C. 163 : 25 W.R. 84 : 3 I.A. 1 : 3 Sar.P.C.J. 58 : 3 Suth. P.C.J. 222 : 1 Ind. Dec. (N.S.) 105 (P.C.). Although it is conceded that the point before us did not directly arise in that case and the remark relied upon by the learned <NAME> for the appellant was a mare obiter dictum, nevertheless, any observation of their Lordships is entitled to the greatest weight and should be a guide to us. It is, therefore, necessary for us to consider that case carefully. There was a mortgage-deed executed on the 21st of Jane 1856, which was subsequently registered and under which it was stipulated that the money would be re-paid in June 1886, but that, in the event of the lands being sold in execution of a decree obtained by a third party, the mortgages would be at liberty at once to sue for the recovery of the debt. On the 18th May 1835, the lands mortgaged were actually sold in execution of a simple money-decree. On the 30th of August 1871, that is, more than six years after but within 12 years of the date of the sale, a suit to recover the amount on the mortgage-deed was instituted. The defendants pleaded that Clause 16 of Act XIV of 1859, which was the general clause applicable to suits for which no other limitation was expressly provided, was applicable, and that the claim was barred, by the six years rule. Their Lordships repelled this contention holding that the slangs applicable was Clause 12 which governed suits * for recovery of immoveable property or of any interest in immoveable property to which no other provision of this Act applies." Referring to the contention of the Counsel for the defendants that the six years rule applied, their Lordships remarked that they must not be supposed to give any countenance to the argument that the suit would have bean barred if the limitation of six years under Clause 16 bad been applicable to it.

10. Now, it is to be noted that in the old Limitation Act of 1859 there was no clause which in any way corresponded to Article 132 of the present Limitation Act and their Lordships felt constrained to apply the general article far recovery of immoveable property corresponding to the present Article 144 , No one contends that that Article applies in the present case. Furthermore, the Counsel for the appellant was driven to fall back on the omnibus clause 16 for "suits for which no other limitation is hereby expressly provided," corresponding to the present Article 120 , which, it is contended before us, is inapplicable to the present case. In fact, there is a uniform course of decisions in all the <ORG> that Article 116 of the Limitation Act would be applicable to a mere money claim based on a registered bond, and not the general Article 120. Their Lordships of <ORG> also have, in the recent case of <CITATION> 39 Ind. Cas. 156 : 25 C.L.J. 279 : 1 P.L.J. 262 : 15 A.L.J. 217 : 32 M.L.J. 357 : 21 M.L.T. 262 : 21 C.W.N. 577 : (1917) M.W.N. 363 : 5 L.W. 654 : 19 Bom. L.R. 450 : 44 C. 759 : 44 I.A. 65 (P.C., accepted the interpretation put on Article 116 in a long series of Indian decisions, and held "that the compensation for the breach of a contrast" does not only point to a claim for unliquidated damages but is used in a very wide sense and includes a claim for payment of a certain sum. It is, therefore, obvious that the case of <NAME> v. <NAME> 1 C. 163 : 25 W.R. 84 : 3 I.A. 1 : 3 Sar.P.C.J. 58 : 3 Suth. P.C.J. 222 : 1 Ind. Dec. (N.S.) 105 (P.C.) can-not, in any way, be taken to have decided the point which arises before us, nor had their Lordships than to interpret the meaning of the expression when the money sued for becomes due" which we have to consider.

11. Coming to <ORG>, we find that the decisions have by no means been uniform. We do not, however, feel called upon to review the numerous authorities of the <ORG> other than our own. We simply content ourselves with mentioning a few cases holding the two opposite views.

12. <CITATION> 24 C. 281 : 1 C.W.N. 229 : 12 Ind. Dec. (N.S.) 854; <CITATION> 20 M. 245 : 7 M.L.J. 222 : 7 Ind. Dec. (N.S.) 174 and <NAME>. v. <NAME> 2 Ind. Cas. 653 tend to apart the view that time begins to run from the date of the first default.

13. <CITATION> 22 M. 20 : 8 M.L.J. 167 : 8 Ind. Dec. (N.S.) 15 and <CITATION> 35 Ind. Cas. 418 : 89 M. 981 : 4 L.W. 77 : 20 M.L.T. 174 : (I916) 2 M.W.N. 125 : 31 M.L. 865 favour the contrary view,

14. The case of <NAME> v. <NAME> 16 A. 371 : A.W.N. (1894) 115 : 8 Ind. Dec. (N.S.) 241 was the case of execution of an instalment decree for which different considerations altogether might arise. We consider is unnecessary to express any opinion about that case.

15. The case of <CITATION> , 29 A. 431 : 4 A.L.J. 336 : A.W.N. (1907) 139 was the case of an instalment bond which was governed by Article 75 which expressly provides that the payee or obligee may waive the benefit of the provision entitling him to sue for the whole amount on default being made.

16. The cases of <NAME> v. <NAME> 30 A. 123 : 5 A.L.J. 72 A.W.N. 1903 36, and <NAME> v. <NAME> 20 Ind. Cas. 933 : 35 A. 455 : 11 A.L.X. 661 are also oases under Article 75 and have no direct application to the present case.

17. The leading case in point is the case of <CITATION> 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510. In that case the majority of the learned Judges held that money "becomes due" within the meaning of Article 132 and time begins to run from the date of the first default. The learned Chief Justice remarked: "It seems to me that the money is due when it can be legally demanded, and it is admitted in the present case that the money secured by this mortgage could have been legally demanded and recovered after the first default, and had a suit been brought for its recovery by sale of the mortgaged property, the defendants could not have pleaded that such a suit was premature." We entirely agree with this view and consider that it lays down the right teat to apply in such cases. <NAME>, J., in his dissenting judgment, was mainly influenced by the circumstance that, under the terms of the mortgage deed then in suit, the mortgagee was "competent to wait for the full period of 10 years stipulated in the bond and it is not obligatory on him to call in the money on the occurrence of a default in the payment of the instalmets". We are, however, distinctly of opinion that the question whether the mortgagee is bound to sue or not and whether he does at once sue or not, is wholly irrelevant to the issue. So long as he can sub, even though he does not choose to sue, the money has become due. We have, therefore, no hesitation in saying that the view taken by the majority of the learned Judges in the <ORG> case referred to above was correct.

18. The case of <CITATION> 63 Ind. Cas. 477 : 19 A.L.J. 406 suggested a rule contrary to that laid down by <ORG>. Neither the re-port nor the judgment, however, shows that the previous <ORG> case was brought to the notice of the learned Judges. We shall have to revert to this case in connection with the second point raised in these appeals.

19. In the case of <CITATION> 63 Ind. Cas. 25 : 19 A.L.J. 456 the mortgage-deed had provided that, in the event of non-payment of interest for two consecutive half-years, the mortgagees would have the power either to benefit themselves by charging compound interest or to sue without waiting for the period fixed for the whole of the principal and interest or to sue for the interest alone. The learned Judges were of opinion that when three options were given to the mortgagees and they did not choose to exercise the option of suing for the whole amount on default of the payment of two consecutive instalments of interest by the debtor, it cannot be said that the time began to run from such abstention". The previous <ORG> case was distinguished on the ground that "in that case no option, be far as we can Bee from the recital of the terms of the bond given therein, was given to the creditor". We think that this ground of distinction is not well-founded. In the <ORG> case the mortgagee was given "the liberty to realise the entire amount with interest" and ''if the mortgagee in his desire for interest does not bring a suit on any default, the interest shall continue" and the judgment of Banerji, J., proceeded on the ground that the mortgagee had such an option. In any case, as we have already remarked above, the mere fact that a mortgagee has the option to sue or to wait would not prevent the money from becoming due and limitation running under Article 132 against him.

20. In the case of <CITATION> 63 Ind. Cas. 441 : 19 A.L.J. 592 : 43 A. 596 the Full Bench case was followed, though presumably in deference to the view expressed in the earlier case of <CITATION> 63 Ind. Cas. 25 : 19 A.L.J. 456, a point was made that in the deed in question no option whatsoever was given to the mortgagee in the matter. We have already said that any distinction based on the existence of an option is a distinction without a difference and wag, moreover, an error of fact. An option was given.

21. In the case of <NAME> v. Turn 63 Ind. Cas. 886 : 19 A.L.J. 712 : 43 A. 671 the view expressed in the case of <CITATION> 63 Ind. Cas. 477 : 19 A.L.J. 406 was dissented from on the ground that it was in conflict with the Full Bench case, and it was held that "the Statute in our view must run from the date of the first default. The liability to pay or, in other words, the Jest of whether money becomes due or not, is the obligation which the borrower has taken upon himself by his signature to the written document. It cannot depend on the volition of the creditor,"

22. The case of <CITATION> 67 Ind. Cas. 160 : 20 A.L.J. 346 : (1922) A.I.R. (A.) 524 is, so far as we have been informed, the latest reported case of this <ORG> following the previous Fall Bench case,

23. Both on principle and the balance of authority, therefore, we are of opinion that the view taken by the <ORG> is correct and that the first default having occurred more than twelve years before the suit, money sued for became due then and the present claim for the enforcement of the charge is barred by time under Article 132 of the Limitation Act .

24. There remains the second question whether even if the mortgagee cannot get a decree for sale he is nevertheless entitled to a simple money-decree, Although the relief for recovery of money otherwise than by enforcing the charge would be governed by another Article with a different period fixed, yet it would be a startling thing to end that the time for recovery of the amount due by sale of the property has begun to run while that for recovering it as a simple debt has not yet started. One would suppose that the cause of action would be the same for both, though different periods might be fixed for the enforcement of the two reliefs. There is one case in which it has been actually held that, although defaults were made yet the mortgagee was not bound to sue for the whole money as soon as there was failure in payment, and, that time did not begin to run till after the date originally fixed. This is the case of <CITATION> 63 Ind. Cas. 477 : 19 A.L.J. 406 already referred to. Let us examine what the decision in this case comes to. The mortgagee has a right to sue for the whole money if a default is made and his suit can-not be thrown out on the ground that it is premature. He has a perfectly good cause of action to sue if he so chooses, yet the limitation does not begin till the date originally fixed arrives The result is that the mortgagee can sue long before the period of limitation for his suit begins to run. This is a reductio ad absurdum, We must, therefore, examine the premises on which the conclusion is based. The learned Judges have not quoted the Article which, in their opinion, was applicable, bat from the remark that the mortgagee had the option to wait till "the period fixed," We take it that they intended to apply Article 66 , read with Article 116 , of the Limitation Act . This would be in harmony with three earlier cases, namely, the case of <CITATION> 39 Ind. Cas. 574 : 15 A.L.J. 313; <CITATION> 50 Ind. Cas. 640 : 17 A.L.J. 647 : 1 U.P.L.R. (A.) 73 : 41 A. 581 and <CITATION> 58 Ind. Cas. 278 : 18 A.L.J. 476 : 2 U.P.L.R. (A) 102. In the last mentioned case <NAME>, J., while referring to the two earlier cases, remarked whether these decisions are right or wrong, we can see no reason whatsoever, in the present case at any rate, for expressing any opinion to the contrary. One of us was a party to one of these decisions and until these decisions are set aside by a larger Bench, we can see no reason why we should not follow them."

25. There can be no doubt that the basis of these decisions, namely, that the claim for a personal decree is governed by a different Article and not by Article 132 , and that, therefore, the Full Bench ruling in <CITATION> 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510 is inapplicable, is perfectly sound and cannot be questioned. The mistake which was made in <CITATION> 39 Ind. Cas. 574 : 15 A.L.J. 313 was in assuming that it was Article 66 , read with Article 116 , which governed the case. In the subsequent cases referred to above, it was simply taken for granted that Article 66 applied. We think that this was not a correct view. The expression single bond" used in Article 66 is clearly borrowed from the English Law. In Lord <NAME>'s Laws of England, Vol. III, page 80, it is said that a bond merely for the payment of a certain sum of money without any condition in or annexed to it, is called a simple or single bond, and that such instruments are rarely, if ever, met with at the present day"...whereas a "double" or "conditional bond" is a form of bond accompanied by a condition in the nature of a defeasance providing that on due performance of the condition the bond shall be void. This distinction wag very clearly pointed out by <NAME>, L. J., in Dixon In re Heynes v. Dixon (1900) 2 Ch. 561 at p. 582 : 69 L.J.C. 609 : 83 L.T. 129 : 48 W.R. 665.

26. Now, the bond in the present case in marked contrast with that before the Full Bench in <NAME> v. <NAME> 3 A. 600 : A.W.N. (1881) 33 : 6 Ind. Jur. 142 : 2 Ind. Dec. (N.S.) 323 (F.B.) which was obviously a single bond without any condition attached and it was then rightly held that Article 86 , read with Article 116 , applied. The bond in suit in the present case cannot at all be called a single bond within the meaning of Article 66. The period primarily specified for payment is 12 years, but it contains the condition that in case of non-payment from year to year the creditor would either add the interest to the principal and charge interest thereon or sue for the whole money and realise the amount from the property hypothecated as Well as the other property of the mortgagor. It further provides that in case the money is not paid within the stipulated period, compound interest will continue to run till realization. In our opinion such a bond cannot be regarded as a single bond, the time for suing on which runs only from the day specified.

27. The expression "bond subject to a condition" as used in Article 68 seems also to have been borrowed from the English Law and refers to what is there called a double or conditional bond with a condition in the nature of a defeasance. The bond in question is not such & bond either. Nor is it an instalment bond within the meaning of Article 75. In our opinion the case falls under Article 80 which governs a bond not herein expressly provided for" in which case the time begins to run from the date when the bond becomes payable". It is to be noted that in the old Limitation Act XIV of 1859, which governed the sage of <NAME> v. <NAME> 1 C. 163 : 25 W.R. 84 : 3 I.A. 1 : 3 Sar.P.C.J. 58 : 3 Suth. P.C.J. 222 : 1 Ind. Dec. (N.S.) 105 (P.C.), there was no clause similar to Article 80 of the new Act which could take the case out of the general clause. Reading Article £0 with Article 116 , which would be applicable to a registered document, the period for recovery of a simple money-decree on the basis of the registered deed in suit would be six years from the date "when the bond becomes payable." Now, the expression "becomes payable" is, in our opinion, very much the same thing as the words "becomes due" need in Article 132. Consequently, the cause of action for both the reliefs would arise at one and the same time, and the period of limitation for both would begin to run simultaneously. Of course, in the case of the enforcement of the charge, the period would be 12 years, whereas for a simple money decree it would be only 6.

28. In a very old case of <NAME> v. <NAME> 2 A. 322 : 3 Ind. Jur. 461 : 1 Ind Dec. (n.s. ) 763 <NAME>, J. was of opinion that a bond, somewhat similar to the one before us, was neither an instalment bond, nor a single bond, nor a bond subject to a condition, and that, therefore, neither Article 75 nor Article 66 nor Article 68 applied. He accordingly applied Article £0. The other learned Judge, however, took a different view.

29. In the case of <NAME> v. <NAME> 8 O.C. 77 the view of <NAME>, J., was followed by <NAME>, <NAME>, who pointed out that ' a single bond is a deed wherein a party acknowledges himself to be bound or indebted to another in a certain sum of money which he promises to pay. If there is appended to it a condition that upon the performance of a certain act. the bond is to be void, otherwise to remain in force, it is called a bond with a condition."

30. We are aware that opinion in the various <ORG> on this point is sharply divided. But agreeing with <ORG>, and <NAME>, A. J. C. we hold that the present bond does not fall either under Article 66 or Article 68 or Article 75 bat fills under Article 80 read with Article 116. In this view of the case the time began to run against the mortgagee for both the reliefs claimed from the date of the first default when the money became payable. The learned District Judge was, therefore, right in dismissing the suit in Mo.

31. The result is that both these appeals fail and are hereby dismissed with costs in all Courts.