[1937] EACA 126

## COURT OF APPEAL FOR EASTERN AFRICA.

Before LAW, C. J. (Zanzibar), LUCIE-SMITH, Ag. C. J. and WEBB, J. (both of Kenya).

# DHARSHI MADHAVJI AND BROS. (Appellants) (Original Plaintiffs)

#### $\boldsymbol{n}$

# F. R. J. VAN RENSBURG (Respondent) (Original Defendant No. 1).

#### C. A. $9/1934$ .

Execution-Application for-Whether time barred by law of limitation—Decree by consent for payment of instalments— Default in prompt payment of one instalment—Subsequent acceptance by decree holder of an instalment—Whether such acceptance acted as waiver of previous default—Effect of decree bearing date other than the date of the judgment-Decree specific and unqualified and not a decree for instalment-Civil Procedure Rules of Kenya, Order XVIII, rules 6 and 7—Indian Limitation Act, 1877, Second Schedule Article 179.

- Held (29-6-34).—That a decree must bear the date of the judgment; but that, in this case, the fact that the decree bore a different date from that of the judgment is immaterial because, if a decree is specific and at variance with the judgment, the statement in the decree prevails. In this case the last payment towards satisfaction of the decree was made on 22nd April, 1931, and the<br>decree had to be regarded as dated 17th November, 1930. The application for execution was made on 19th January, 1934, i.e. within three years from 22nd April, 1931, and therefore the application not be used in *Participation*. application not barred by limitation. - Held Further.-That, even if there be default in the regular and prompt payment of instalments to be paid under a consent order, the acceptance of subsequent payments operates as a waiver of any previous default. Cases of Indarjit Prasad v.<br>Richha Rai, 1892, 15 All., page 5; Lachmi Narain v. Jwala Nath, 1896, 18 All., page 347; Jiwat Dube v. Kali Charan Ram, 1898,<br>20 All., page 478; and A. Allidina Visram v. Adamji Nurbhai, 9 E. A. L. R., page 164, quoted with approval. Appeal allowed and order made that the application for execution be heard by Supreme Court of Kenya on its merits.

Appeal from Supreme Court of Kenya.

Angus for appellants.

Ross for respondent.

Angus.—If decree wrong it is not mere clerical error—this would involve going back to 17-11-30. It was duty of respondent to get date corrected. 25 Calcutta, p. 258, Order amending decree is passed on review and limitation runs from that date. 8 All. p. 495; duty of parties to see decree is drawn up correctly. Agrees that judgment against respondent was passed on 17-11-30. What is noted on 27-1-31 is virtually a review of 17-11-30. Decree not drawn till October, 1931. Assume that judgment was passed on 17-11-30, but there was in law no default in payment of instalments on 5-3-31. 9 E. A. L. R., p. 164, waiver cures default, Mulla, p. 617, 9th Ed. If debtor pays overdue instalment and creditor accepts, then it is no default. Although $\cdot$ instalments paid after 5th March, this date is sufficient for my. purposes. If two decrees, later decree should be followed. 20 All, p. 478 (this case also touches question of costs-mistake of decree-holder), mistake in date in application for execution may be justified if no doubt as to decree, which is to be rectified. Decree must be construed in favour of decree-holder, $S. P. v. I. P.$ . 16 All, p. 371.

Ross.-Never any application to amend any judgment or The order of 28-1-31 is no review-see its language. decree. Any amendment must have been to make it agree with judgment. S. M. v. L. M. (1922) 1 Patna Reports, p. 771. Limitation from that date. 8 All., p. 495, one cannot amend after limitation to save limitation. D. R. v. C. N. (1878) 2 Bombay, p. 356, pavment of instalment late does not give judgment creditor a fresh Also S. v. K. P. (1879) 2 Allahabad, p. 443. starting point. J. v. J. (1881) 4 Allahabad, p. 83. Z. v. A (1884) 7 Allahabad, p. 327, barred. Compare R. v. D. 15 Calcutta, p. 502, contradicted H. v. N., 21 Calcutta, p. 542. 9 E. A. L. R. presumed due payment of instalments. This is distinguishable from the Indian. cases which are the law on the subject. There never was a decree which could be executed. Never any attempt to remedy. that defect. Anyhow it was for plaintiffs to do that. Plaintiffs could not get more than decree otherwise than in accordance with. judgment of 17-11-30. Default on 5-1-31. In no circumstances can it be cured. $\mathcal{I} \subset \mathcal{I}$ $\mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}}$

### Angus replied.—15 Calcultta, p. 502.

Law, C. J.—The facts in this case are not in dispute. $\mathbf{In} \mathrel{\mathop:}$ Civil Case No. 55 of 1930 the appellants brought an action against respondent and four other defendants. It is not necessary to consider the relief claimed in that action. On the 17th November, 1930, the respondent and another of the defendants (the second) signed a "consent" to judgment in favour of the appellants for Sh. 2,173/33, together with interest and costs, payable by monthly instalments of Sh. 200, the first of which was to be paid on the 5th January, 1931, and thereafter on the 5th of each succeeding month. The "consent" contained the: usual default clause that, on failure of payment of any oneinstalment when due, the whole amount then unpaid should

immediately become payable. The learned trial Judge thereupon passed judgment against respondent and the second defendant, the same day, in terms of the "consent".

Judgment was passed against the third and fourth defendants on the 27 January and against the fifth defendant on the 28th January, 1931. When passing judgment against third and fourth defendants the learned Judge recited the fact that judgment had already been passed against respondent and second defendant. This is as I understand his Orders of the 17th November, 1930, and the 27th January, 1931. Copies of the relative proceedings, though not on the record of this appeal, were shown to this Court and were agreed to be correct by learned counsel for the parties.

Only one decree was made out in this case, it is said as late as in October, 1931, bearing date the 28th January, 1931. It is made out against respondent and the other four defendants. So far as the respondent and second defendant are concerned the decree is entirely silent as to payment by instalments.

The second, third, fourth and fifth defendants are not parties to this appeal.

A decree must bear the date of and follow the judgment (Order 18, rules 6 and 7). In this case, as against respondent it does neither. The fact that the decree bears a different date to that of the judgment is, in my opinion, immaterial. The provisions of the law supply the date for the decree. It follows, therefore, that, in law, the decree—so far as the respondent is concerned—must be treated as dated the 17th November, 1930. Learned counsel for appellants explains that owing to failure on the part of the respondent to observe the terms of the "consent" and to pay in full the instalment due on the 5th January, 1931 (only Sh. 100 was paid of the Sh. 200 due that day) reference to instalments was omitted when the decree was made out. Be this as it may, the decree must speak for itself.

The matter therefore resolves itself into this position, namely, that the decree does not strictly follow the judgment. It has been decided, however, that if a decree, as in this case, is specific and at variance with the judgment, the statement in the decree is to prevail. (Indarjit Prasad and others v. Richha Rai, 1892, 15 All., at p. 5). Though Courts are required to be careful not to draw up imperfect decrees, at the same time litigants should not be deprived of the fruits of success owing to some carelessness on the part of the Court. (Lachmi Narain v. Jwala Nath, 1896, 18 All., at p. 147).

For the foregoing reasons I consider that the decree must be regarded as dated the 17th November, 1930. (Compare Jiwat Dube v. Kali Charan Ram and others, 1898, 20 All., p. 478). Virtually, this is what was sought to be executed. It is true

that in the appellants' application for execution, dated the 19th January, 1934, reference is made to instalments, but this is now of no importance; though the amounts thus paid must, of course, be credited to respondent. The amounts paid need no longer therefore be regarded in the light of instalments but as moneys paid to account of the decree. For the purposes of this appeal, though it is said there were further payments, the last payment was made on the 22nd April, 1931. The application for execution was made on the 19th January, 1934, within three years from the latter date. I would hold, therefore, that the application is not barred by limitation.

It seems to me that the arguments, both before the learned trial Judge and in this Court, have been based on a misconception. There has been no decree for instalments; there has been a specific and unqualified decree unamended, at variance with the judgment. It appears that the learned Judge has treated the application as one based on a decree, dated the 17th November, 1930, for payment by instalments in respect of which default had been made on 5th January, 1931. For the appellants it was argued that payments by the respondent subsequent to that date, namely in February and April, 1931, which were accepted by the appellants, amounted to a waiver of the default. On behalf of the respondent it has been argued that such acceptance does not amount to a waiver which can cure a default once made. Decided cases in various Indian High Courts have been quoted by learned counsel for both parties in support of their respective contentions. I feel at liberty therefore to decide this question according to my own views, and to accept, which I do, the case of A. Allidina Visram v. Adamji Nurbhai, 9 E. A. L. R., p. 164, as authority for holding that, in the circumstances of the case, the subsequent payments operated as a waiver of any previous default. This being so, the payments in February and April, 1931, would cure the alleged defaults on the 5th January, February and March, 1931, and the application, for these reasons also, would not be barred by limitation.

In the circumstances; therefore, I would allow the appeal with costs here and below, and direct that the application be heard on its merits by the Supreme Court.

LUCIE-SMITH, Ag. C. J. (Kenýa).—I agree.

WEBB, J. (Kenya).—I agree.