1. The consent decree runs in the following terms :-
Plaintiff do recover from defendant Rs. 253-10-5 out of Rs. 753-10-5 alleged by plaintiff (to be due to him) and admitted by defendant, on the 30th day of Chaitra of the next cyclical year Rakshasa (14th April 1915). As to the balance of Rs. 500 on deducting the said amount (of Rs. 253-10-5) plaintiff' do pay the same to defendant by live instatments of Us. 100 each payable on the 30th day of the Magh of each year beginning from the 30th of Magh of the next year, that is, of the cyclical year Rakshasa. In this way defendant do pay (the whole amount) by six instalments. In case of failure to pay the amount of any one instalment, he should pay the amount of instalment he has failed to pay with interest at the rate of Rs. 12-8-0 per cent, per annum from the date of failure to pay the instalments up to the date of payment. In case of failure to pay the amount of any two instalments at the period fixed, defendant do pay to plaintiff all the amount of instalments remaining unpaid on deducting the amount of instalments paid at that time, together with interest thereon at the above rate, that may accrue from the date of default up to the date of payment; in this manner the amount should be paid in one lump sum.
2. Upon this decree a dispute has arisen in the following circumstances. The first instalment of Rs. 253-10-5 was to be paid on or before the 14th April, 1915. The second instalment of Rs. 100 was to be paid on or before the 30th March, 191(5. The first instalment was not paid on the date fixed, but in January 1916, before the due date of the second instalment, it was paid in full with interest at the agreed rate. There was a further default in paying the second instalment due on the 30th March 1916. The decree-holder thereupon claimed that there was a failure to pay the amount of two instalments at the period fixed, and, therefore, that he was entitled to claim the whole amount of his debt at that time remaining unpaid. The lower appellate Court has acceded to that contention and hold upon a construction of the decree that on the 30th March 1916 there had been a failure to pay the amounts of two instalments at the period fixed. We are of a different opinion. We think it unnecessary to go into the questions raised and discussed in the judgment of Jenkins C.J. in the Full Bench case of Kashiram v. Pandu I.L.R (1902) Bom. 1. That and the case out of which it arose had special reference to the points at which limitation began to run on breach of conditions in instalment bonds very similar in their terms to those we are considering. All that I would say is that if the view taken by the learned Chief Justice be correct that the acceptance of an overdue instalment before the next succeeding instalment becomes due amounts to estoppel and precludes the creditor from alleging that there was a prior default, then the position here would admit of no argument. It is, however, contended on behalf of the respondent that he had no option in the matter ; that there was in no real sense a waiver when he accepted the amount of the first instalment with interest in January 1916 and therefore that there is no room for the introduction of the principle of estoppel. It appears to us, however, that the decision can be put upon a much simpler and more satisfactory ground. Upon our reading of the decree itself, we entertain no doubt but that the real intention of the parties was that before the penalty could be enforced two instalments must be in arrears together. Adopting that construction, it is clear that the condition had not been fulfilled in this case, for before the default of the 30th March 1916 the first instalment had been paid in January 1916. There was, therefore, at the time the decree-holder claimed to call in the whole debt, only one instalment in arrears. We think, therefore, that the view taken by the learned District Judge was wrong and that there has been no such failure to pay the amounts of two instalments at the period fixed as would entitle the decree-holder to the order he obtained in the lower appellate Court.
3. We think that the decree of the learned Judge must be reversed and this appeal allowed with all costs,
4. I concur.