Skip to content


Hansraj Godhaji Marwadi Vs. Bapu Krishnaswami Pile - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 490 of 1920
Judge
Reported inAIR1923Bom207; (1923)25BOMLR153
AppellantHansraj Godhaji Marwadi
RespondentBapu Krishnaswami Pile
DispositionAppeal dismissed
Excerpt:
instalment decree - failure to pay instalments-waiver-limitation.; in february 1916, the plaintiffs obtained a decree for rs. 6,562 odd payable in monthly instalments of rs. 50 each : in default of payment of any six instalments the whole amount became due by sale of the mortgaged property. the first six instalments were not paid by august 1916. the defendants paid rs. 5,500 in april 1917 and rs. 400 in january 1918 towards the decretal amount to the plaintiffs. in september 1919, the plaintiffs applied to recover the balance of the decretal amount by sale of the mortgaged property. the plaintiffs sought to bring their application within time by contending that the receipt of payments in 1917 and 1918 constituted waiver on their part:-; negativing the plea of waiver, that it was..........amrit v. govind : (1920)22bomlr919 in which case it was held that, upon the facts there established, a waiver might be inferred. but a perusal of the judgment in that case shows at once that there is no analogy between the facts there found and the facts in the present case. there execution proceedings were taken out from time to time without any objection a being taken; and there were other circumstances also from which the court inferred that as a matter of fact there had been a waiver. there is nothing of the kind here, and we are unable to hold that any waiver can be inferred. it follows that the order is correct and that the appeal must be dismissed with costs.
Judgment:

Norman Macleod, Kt., C.J.

1. On February 29, 1916, an award decree was made whereby the defendants were bound to pay to the plaintiffs Rs. 6,562-8-0 with interest thereon by instalments of Rs. 50 every month. It was provided that in case of default in payment of any six instalments, the whole amount should become due by sale of the mortgaged property specified in the decree. On September 27, 1919, the decree-holder put in a Darkhast, and it was objected that his Darkhast was time-barred because by August 1916 there had been a failure to pay six consecutive instalments. Therefore at that date the whole amount of the decree became due. Prima facie the Darkhast being given three years after the date on which the whole amount was recoverable would be time-barred.

2. It has been suggested that by reason of a payment made on April 9, 1917, limitation is saved by virtue of Section 20 of the Indian Limitation Act. But it is clear that Section 20 could have no application, as the payment in question did not appear in the handwriting of the person making the same.

3. It was further argued that in the circumstances of this case, the Court should infer a waiver. The only facts pointed out are that, on April 9, 1917, a payment of Rs. 5500 was made, and that, on January 19, 1918, that is to say, eight months afterwards, a payment of Rs. 400 was made, i. e., eight times the instalments due under the decree. But it is impossible from these circumstances alone to infer that the parties came to an arrangement that there should be an agreement for a new period of limitation.

4. The appellant relies upon Amrit v. Govind : (1920)22BOMLR919 in which case it was held that, upon the facts there established, a waiver might be inferred. But a perusal of the judgment in that case shows at once that there is no analogy between the facts there found and the facts in the present case. There execution proceedings were taken out from time to time without any objection A being taken; and there were other circumstances also from which the Court inferred that as a matter of fact there had been a waiver. There is nothing of the kind here, and we are unable to hold that any waiver can be inferred. It follows that the order is correct and that the appeal must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //