L.H. Jenkins, C.J.
1. From the dates on which the several instalments were paid it, appears that, though certain of them were paid after the date of which they were properly due, at no time up to 1895 did any single instalment remain unpaid at the date when that immediately succeeding it accrued due. This might serve to distinguish the present case from the decision in Dulsook v. Chugon Narrun (1877) 2 Bom. 356; bat I desire to place my decision on broader grounds, believing that thereby a solution of the difficulty attending instalment decrees will be furnished, which will be more easily apprehended by the mofussil Courts, than if I limited myself to the refinement which the distinction above referred to would involve.
2. Though the decree is equivocal on the point, I will assume, as most in the defendant's favour that on two successive defaults the instalments thenceforth ceased, and the plaintiff was relegated to his right to recover the balance of the decretal sum by taking possession. And yet we find that after the default on which the defendant relies, instalments were paid by the judgment-debtor and accepted by the decree-holder; that though the first and second instalments were late, the third was paid within time; and that while the fourth to the seventh were beyond time, the eighth instalment was paid and accepted within the prescribed period.
3. In April, 1895, therefore, every instalment then due had been paid, and there were no arrears, so that, if limitation be reckoned from defaults after that date, the present application is within time. Must we, notwithstanding this, hold that the plaintiff is barred because his right to recover possession arose on the defendant's previous failures to make punctual payments?
4. In Bombay there are two difficulties in the way of our holding that the plaintiff is not barred. First, it has been held that the statute of limitation operates notwithstanding subsequent payment of overdue instalments; and, secondly, that payments of overdue instalmants cannot by themselves prove a waiver. It is because of these two difficulties that this case has been referred to a Full Bench of this Court. The origin of the view that failure to pay in accordance with the terms of an instalment decree is not affected for the purposes of limitation by subsequent payment and acceptance, is to be found in the decision in Dulsook v. Chugon (1877) 2 Bom. 356 Notwithstanding the high respect that must at all times be yielded to the opinion of the learned Judges responsible for that decision, it undoubtedly detracts from its value that the case was un argued, and this 'disadvantage is, I think, apparent in the somewhat inconclusive reasoning on which the opinion is supported.
5. In the Courts of the other Presidents it has been repeatedly recognised, that there are pertinent considerations which were not discussed or alluded to in Dulsook's case. It has been said the to the general rule, by which a decree-holder would ordinarily be barred of his rights under an instalment decree there is an exception where the default has been waived. Thus in Mon Mohun Roy v. Durga Churn (1888) 15 Cal. 502 it was said (page 505):
First, it is a general rule that where a decree or order makes a sum of money payable by instalments on certain dates, and provides that, on default in payment of one of the instalments the whole of the money shall then become due and payable, and be recoverable in execution, then, under Article 179 of the Limitation Act...limitation commences to run when the first default is made. There has, however, bean engrafted upon that general rule an exception in certain cases. That exception I understand to be this, that if the right to enforce payment of the whole sum due upon default being made in the payment of an instalment has been waived by subsequent payment of the overdue instalment on the one hand and receipt on the other, then the penalty having been waived, the patties are remitted to the same position as they would have been in if no default had occurred.
6. Though it may be no more than a matter of form, I am averse to treating the operation of subsequent payment and acceptance as an exception to a general rule. It oreates a doubt whether we have found, the true rule. So I would venture to express the position in somewhat different language.
7. The true view appears to me to be, that, though there may be a failure to pay punctually under an instalment decree, still the subsequent conduct of the parties may preclude either of them from afterwards asserting that payment was not made regularly and in satisfaction of the obligation under the decree, this is illustrated by the case of Norton v. Wood (1829) 1 R. & M. 178, where the oblige under a bond bound himself not to call in the principal for a specified period, if interest were regularly paid. On two occasions interest was paid after the due date In delivering his judgment Lord Lyndhurst said:
The question whether payment of interest tendered after it is due and accepted by the creditor is or is not a regular payment, is one which, at law, would be left to the jury. An to the construction to be put upon the memorandum, I agree with the Vive-Chancellor, and then the only remaining question will be whether this amounts to a regular payment of the interest. Upon that point I feel myself bound to express a different opinion from that entertained by His Honour. I think, if money is tendered after the period when it became due, and the person, to whom it has been paid does not see fit to refuse it, it is a waiver of the objection; it must be taken as a regular payment if the person receives it the day after without making any objection.
8. Here, then, we have a recognition the principle involved in the maxim unusquisque potest renunciare juripro se introducto whose modern application has been asserted by Lord Selborne in the Great Eastern Railway Co. v. Goldsmith (1884) 9 App. Cas. 927 , even where the jus renounced was the creature of a statute charter. It is true that in Norton v. Wood (1829) 1 R. & M. 178 the delay in payment was small, but that does not disturb the principle on which the decision rests. Also, no doubt, in that case the rights wer.6 contractual and not decretal, but this is a distinction in a circumstance not really material, for the case fit Great Eastern Railway Company shows that the maxim is not limited in its operation to right arising from convention.
9. An exposition of the law on the same lines is to be found in the judgment of Lord Hatherlay in Thompson v. Hudson (1868) L.R. 8 H.L. 1 where he says (page 17):
It is simply (as Lord Justice Turner put it) that, upon one of the conditions being broken, a concession is made in respect of that one condition, with regard to which the appellants could never again insist upon their complete rights.
10. This view is not far, if at all, removed from an application of the doctrine of estoppel, for it would be but an elaboration of it to say that if each of the parties has by his acts intentionally caused the other to believe that the payment was a regular satisfaction of the obligation, and the parties have acted on that belief, neither can afterwards deny the regularity.
11. The vice of Dulsook's case (1877) 2 Bom. 356, as it seems to me, is that it stands on too narrow a basis : it insists on the default to the exclusion of all else; while the truer view would seem to be that default may, under the influence of after-events cease, as between the parties, to bear that character. Whether this change has come about; in any case is, in the language of Lord Lyndhurst, 'to be left to the jury,' that is to say, it can only be determined by reference to the circumstances of each case.
12. Thus to take the facts of this case. Could the decree-holder in May, 1892, have successfully applied for possession? Would he not at once have been met with the objection. 'All the instalments due to this date have bean paid to you, and accepted by you as such in satisfaction of the obligation created by the decree: you were only entitled to those instalments on the hypothesis that the instalments still continued payable, and could be so paid in satisfaction, and that excludes the idea that the right to take possession exists: you cannot be heard to say that there has been a default which entitles you to take possession?' I think he would: and that the objection would have prevailed. But if he could not have taken possession, he could not be barred of that right, if by default it later arose. There cannot be approbation and reprobation, The soundness of: this view may be tested thus: if in this case all instalments save the last two had been punctually paid, would the unpunctual payment of those two, after they had in fact been paid and accepted, have entitled the decree-holder to possession; Surely not. And the reason must be that he could not after acceptance of those instalments be heard to say, that they had not bean paid and accepted as regular instalments in satisfaction of the decree.
13. I recognise to the full the paramount duty of keeping the decrees of the Court inviolate, bat, in my opinion there is no evasion of that duty in the application of the considerations I have discussed. The terms of the decrees are not thereby modified; it is only that, in obedience to a well established principle, a limit is placed on permissible proof, so that it become beyond the power of the person affected to lead the evidence requisite to bring into play the particular provision of the decree, and of things that do not appear and things that do not exist, the reckoning in a Court of law is the same per Lord Halsbury in Seaten v. Burnand (1900) App. Ca. p. 139.
14. It is unnecessary to discuss farther than they were in argument the decisions of the other Courts, not because they are undeserving of consideration--they have been most fully considered but because there (so far as I can see) views similar to those I have expressed, though perhaps differently framed, prevail. Indeed, it is because the consensus of opinion elsewhere favours the view that subsequent payment and acceptance of overdue instalments must be taken into consideration for the purpose of applying the rules of limitation to an instalment decree, that this reference has bean, made; for it is, in my opinion, desirable and in the interest of justice that so far as possible, there should be unanimity between the several Courts on those matters, where local considerations do not call for different results. It might be said that we should observe the maxim stare decisions, has, outside the realm of property law that rule loses so much of its importance, that it ought not to weigh with us in the present case.
15. I now proceed, to deal with the second of the two difficulties which confronted the referring, Bench, viz. the opinion expressed in Balaji v. Sakharam (1892) 17 Bom. 555 that payment and acceptance of overdue instalments cannot by themselves prove waiver. This (if intended to be a general proposition of law) is opposed to the view expressed in several Calcutta cases Ram Culpo v. Ram Chunder (1887) 14 Cal. 352; Mon Mohun v. Durga Churn (1888) 21 Cal. 542 ; Hurri Pershad v. Nasib Singh (1894) 21 Cal. 542 , and in its operation conflicts with the, decision of Lord Lyndhurst, which I have already cited. In my opinion the point is one to be determined on the circumstances of each case, and unless the proposition in Balaji v. Sakharam (1892) 17 Bom. 555 was intended to be limited to the facts of that case, I think it cannot be sustained, and that we should decline to follow it.
16. The result is that, in my opinion, we should answer the reference by holding that, having regard to the payment and acceptance of instalments in this case, the application is within time. I think we are entitled so to decide, notwithstanding that this is a second appeal, for it is a mixed question of law and fact that is involved. 16. I am glad that it is open to us to coma to this conclusion as to the effect of waiver on instalment decrees; for, though in this case the result is that a judgment-debtor is held to his obligation, to hold otherwise, instead of being beneficial to judgment-debtors generally, would preclude decree-holders under instalment decrees, however favourably inclined, from acting with reasonableness, and would possibly in the resuls throw debtors (to use the language of Lord Selborne in, Cotterell v. Stratton (1873) L.R. 8 Ch. 295 into the hands of those who indemnify themselves against extraordinary risks by extraordinary exactions.'
17. At the same time, I think it would be a wise precaution, and possibly would save litigation in the future, if judicial officers in this Presidency, in framing instalment decrees, wound make it clear that the rights consequent on defaults are dependent on a positive election by those in whose interests they are intended to be created.
18. I concur.
19. I concur. The tender on one side and acceptance on the other of instalments as such appears to me to create an estoppel, which precludes both parties from offering evidence of an alleged default which each party had by his conduct induced the other to believe had not occurred. 20. The theory of waiver by the plaintiff does not appear to me equally consistent with a strict construction of the decree; as that theory would require to be supplemented by a corollary that plaintiff could not only waive his right to recover in lump, but could also revive a right ex hypothesi otherwise extinguished to recover by instalments.
20. I concur with the judgment of the Chief Justice and would add the following remarks.
21. On the point, what constitutes waiver, Mr. Rao for the appellant has cited decisions of the Calcutta. Madras and Allahabad High Courts, some with reference to instalment decrees and others with reference to instalment bends, in some of which, from the fact of payment and acceptance of an overdue instalment, an inference has been deduced that the creditor or the decree-holder had in fact waived the benefit provided by the bond or the decree, the benefit waived being in those case's a right to recover at once all the instalments remaining due. The principal cases are discussed in Sitab v. Hyder (1896) 24 Cal. 281.
22. The Calcutta case Hurri Pershad v. Nasib (1894) 21 Cal. 542 an instalment; decree case, does not go so far as the case of Shankar v. Jalpa Prasad (1894) 16 All. 371; but it was said (p. 547): 'We cannot hold that mere abstinence from suing can amount to waiver or that there can be any waiver so as to affect limitation save by payment and acceptance of an overdue instalment. Nor do we think that any distinction can be drawn between a case in which it is provided that, on payment of an instalment, the whole amount shall become due, and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. There seems no reason why limitation should begin to run in the one case and pot in the other.' In the same case it was held that an uncertified payment, which cannot be recognised under Section 258, Civil Procedure Code (XIV of 1882), may be proved for the purpose of showing that the period of limitation did not begin to run until the default made in respect of the second instalment.
23. In the Madras Presidency it was decided in Nagappa v. Ismail (1889) 12 Mad. 192 that acceptance of the amount of an instalment in arrear, on account or in satisfaction of such arrear, amounts to a waiver within the meaning of Act XV of 1877, Schedule II, Article 75, so as to give a fresh starting point in limitation and to revive the right (of the debtor) to pay the debt by instalments. This decision, which is cited in Balaji v. Sakharam (1892) 17 Bom. 555 dealt, it is true with a bond and not with a decree, but there is nothing in the Madras decision inconsistent with the view that, in the case of an instalment decree also, such acceptance by a decree-holder of an overdue instalment would revive in the judgment-debtor the right to pay the decreed debt by instalments, and thus not only restore the same conditions of the decree as to subsequent instalments, but also start a fresh period of limitation.
24. Indeed, this is the view which seems to have been accepted by this, Court in Balaji v. Sakharam (1892) 17 Bom. 555 where the principle of decision was not that in case of an instalment decree the decree-holder has no option but to execute the decree once and for all for the whole amount due under it an provided in case of a default, suit that, on the evidence, it was not proved that the decree-holder had accepted payment of an overdue instalment on account of the specific instalment in arrear so as to constitute waiver.
25. For the respondent, reliance was specially placed on Dulsook v. Chugon (1877) 2 Bom. 356 which applies to installment decrees the principle on which Gumna v. Bhiku (1875) 1 Bom. 125 was decided as to instalment bonds.
26. In Gumna v. Bhiku the plaintiff sued on a promissory note which provided for payment by instalments, with a stipulation that, in default of any one of these instalments not being punctually paid, the whole amount was to become payable at once. The plaintiff alleged that after a default the defendants made and plaintiff accepted payments. It was said in the Full Bench decision in that case: 'The creditors, no doubt not bound immediately to sue for, or insist upon payment of, the whole debt. He may, if he chooses, show forbearance towards his debtor, and accept a part of what is due. But, if he does so, he does not thereby prevent, or change in any way, the operation of the law of limitation, which, notwithstanding any such subsequent wish on his part, begins to ran from the time of the first default rendering the whole amount due.' This Full Bench case was, decided upon the Limitation Act XIV of 1859, which contained neither the provisions in Section 20 nor the Article 75 of the Schedule II in the later Limitation Act by which it is practically superseded. But in Dulsook v. Chugon (1877) 2 Bom. 356 its principles were applied to a decree payable by installments. In this case it is remarked by Westropp, C.J.: 'The principles, however, on which that case Gumna v. Bhiku (1895) 20 Bom. 109 was decided apply in this case. There is not in the last clause of Article 167 of Schedule II of the Act IX of 1871 which clause relates to decrees payable by instalments, any provision similar to that in Article 75 of the same schedule with respect to promissory notes or bonds payable by instalments; where such notes or bonds provide, that if default be made in payment of one instalment the whole shall be due, fixing that the period of limitation shall begin to run from the time of the that default, unless where the obligee waives the benefit of the provision, and then when fresh default is made. Nor does there appear in the new Limitation Act (XV of 1877), Schedule 11, Article 179, Clause 6, relating to decrees payable by instalments, any such provision.' Accordingly, it was held that a decree payable by instalments, with a proviso that in default of payment of any one instalment the whole amount of the decree shall become payable at once, is barred if application for execution be not made within three years from the date pa which any one instalment tell due and was not paid.
27. In Hiralal v. Budho (1883) 1 Bom. 125 the question considered was what constitutes waiver, and the decision related to an instalment bond, not to a decree payable by instalments. The same remark applies to Devlal v. Sadashiv (1888) P.J. p. 381 and to Kankuchand v. Rustomji (1895) 20 Bom. 109
28. In Hoti Devchand v. Naraji (1894) P.J. p. 407 the decision related to a decree payable by instalments. The decree directed payments by annual instalments from November, 1881, and ordered that in default of payment of three instalments the whole amount shall be recovered at once by sale of the mortgaged property. The instalments were not regularly paid, but between August, 1885, wd November, 1891, the defendant paid various small sums. In 1893 the decree-bolder applied for execution of the decree to recover Rs. 29, being the balance of the instalments which had become due till then, by the attachment and sale of the deceased defendant's moveable property, it was held that the application was time-barred, because it was not made within three years from the default in payment of the first three instalments. It must be observed, however, that the Judges who decided this case expressly stated: 'In the presebt case we do not construe the decree as giving an option.'
29. In the case of Balaji v. Sakharam (1892) 17 Bom. 555 already referred to, the dispute was about execution of a consent decree for Rs. 1,800 passed in a mortgage suit, which ordered (inter alia) that the defendants should pay off the amount by annual instalments of Rs. 50 to the paid on the 30th April every year, and on their failure to pay any of the instalments within the stipulated period, the plaintiff should recover the balance of the decretal amount by the sale of the mortgaged property and from the defendants personally. The defendants made default in payment, but paid various sums later on. The plaintiff applied well within time for execution of the decree and to recover the balance due by sale of the mortgaged property and from defendants personally. The defendants pleaded waiver. No question was raised that the plaintiff was left no option under the decree to extend the same for payment of any instalment, and the decision turned merely upon the point whether there was sufficient evidence of a waiver.
30. If the decision in Dulsook v. Chugon (1877) 2 Bom. 358 was intended to rule, that in applying the law of limitation to an application for execution of an instalment decree, the Court executing the decree mast confine attention merely to the decree, and to what is provided within the four corners of the Limitation Act: that, in fact, the right to apply for execution, which must accrue before limitation can begin to run, cannot be affected by the conduct or agreement of the parties to She decree, and the executing Court is therefore precluded from giving effect to legal or equitable principles derived from authority outside the sections and schedules of the Limitation Act in determining whether the rights of the parties to such a decree have been so modified by the conduct or agreement alter the decree as to affect the law of limitation applicable to an application for its execution: then I think, with great deference to the authority by which Dulsook's case (1868) 5 B.H.C.R. 35 was decided, that we may, for reasons advanced by the Chief Justice, well hesitate to accept such a proposition. It has not been expressly adopted by any subsequent decision of this Court cited during the course of the argument, and such a proposition is opposed to the principle upon which, as already shown, subsequent cases in this Court have been decided.
31. Now the decree of which execution is sought in the present case contains no stipulation that the whole balance of the decreed debt is to become recoverable at once in execution proceedings on the occurrence of the default mentioned in the decree. The decree is a consent decree passed in a mortgage suit. It decrees payment of a sum specified by specified instalments and it converts the mortgagee's rights to possession of his security into a conditional right, the condition precedent to the recovery of possession being default by the judgment-debtor in paying any two consecutive instalments of the debt decreed. The position of a judgment-debtor, who is in default under such a decree, though not exactly the same as that of a lease-holder whose lease of immoveable property has become determined by forfeiture under Clause (g), Section III of the Transfer of Property Act (IV of 1882), is sufficiently analogous to make is pertinent to observe that such a forfeiture is waived by acceptance of rent which has become due since the forfeiture, or by any other act on the part of the lessor showing an intension to treat the lease as subsisting unless such acceptance is subsequent to a suit in ejectment: see Section 12 of the Transfer of Property Ace. The guiding principle applicable to the question appears to me to have been, laid down in Ramkrishna v. Bayaji (1868) 5 B.H.C.R. 35 where it was said by Couch, C.J., and Newton, J.: 'Although the instalments were not paid by the defendant at the tune fixed for payment, yet the defendants having paid the money on account of them, and the plaintiff having accepted it, the payments must be considered as regards both the patties as if made at the time fixed, and the plaintiff cannot take advantage of the stipulation that the sum should become due on failure to pay any instalment, or the defendant rely upon it as making the whole debt due and fixing the period, from which the time of limitation ran.' That view was accepted by the Legislature as regards instalment bonds after a contrary opinion was expressed in the Full Bench decision of Gumna v. Bhiku (1876) 1 Bom. 125 and the Limitation Act (XV of 1877) does not appear to contain any provision whichprevents the application of the same principle to instalment decrees. But it is a view, which in my opinion, is not based solely upon the doctrine of waiver. Where there exists no right, there, I apprehend, can be no waiver. The learned Chief Justice has already pointed out that under a decree framed in the same words as the one under consideration, there might conceivably be no default except as to the last two instalments, which the decree-holder might accept when overdue. If such a decree-holder, after such acceptance, were, nevertheless, to apply for possession of the land, because the decree awards such possession on default of payment of any two instalments, the plea of the judgment-debtor would presumably be satisfaction, not waiver; there being no right left to be waived if the conditional, right to possession of the land as security has ceased to exist as soon as the debt decreed itself is fully discharged, and the security is extinguished.
32. To take another illustration Suppose the decree had ordered payment of the whole decreed debt on a specified date and had provided that the creditor was to take possession in default of such payment. If such a decree-holder were to accept the whole sum due under the decree after due date and were nevertheless to apply for possession, the defence to such a claim would again presumably be satisfaction and not waiver, when the decreed debt is discharged and the security is extinguished.
33. The question thus arises whether any essential difference exists when the decreed debt is divided into instalments payable at stated intervals with the same provision as to recovering possession in execution when there is default in paying any two consecutive instalments. Such a decree would be satisfied for the time being by payment of the instalments on the dates specified, and if it would not be straining the interpretation of such a decree to treat it as satisfied for the time being if the decree-holder accepts all the instalments which have fallen due, though overdue at the time of acceptance, then in such cases alone there would be no right to possession and no scope therefore for waiver, if such right is suit by acceptance whether intended to be waived or not. On the other hand, if the decree made all the remaining instalments payable on the occurrence of a default specified (which the decree under consideration does not do), then, too, if we accept the principle laid down in Ramkrishna v. Bayaji (1868) 5 Bom. 35, the Court to which application for further execution of the decree is made may well say to the decree-holder: 'The judgment-debtor is not in default, the payments you have chosen to accept before making your application must he treated as if made at the time fixed in the decree, and the decree is therefore satisfied for the present and not capable for the present of further execution.'
34. Under this view, which appears to me to be both reasonable and sound in principle, it would be immaterial whether the decree awarded possession or made all remaining instalments at once recoverable on the occurrence of the default specified.
35. I therefore fully agree with the reasons given by the learned Chief Justice for answering the reference in the terms proposed.