W. Comer Petheram, C.J. and Straight, J.
1. The only question in this appeal is, whether the creditor is to recover interest on the bond in suit at the rate of Re. 1 or Re. 1-6 per cent, per mensem. The facts of the case are really not disputed, and the question in our opinion turns entirely on the construction of the bond itself. By that, it appears that the plaintiffs and others in the year' 1875 lent a sum of Rs. 30,000, at one per cent, per mensem, on the security of a certain property: the bond then contains various provisions which were inserted in the deed for securing payment of interest, all of which were for the benefit of the creditor. Inter alia, it was provided that the mortgagee should have possession of the security, and should take the profits on account of interest, the profits being agreed at a certain figure, leaving an agreed balance of interest to be paid yearly in cash. There was also a provision that, in the event of possession not being given, the creditor might treat the money as immediately due, and recover it at once with interest at the rate of Re. 1-6 per mensem.
2. These provisions were, as we have said before, for the benefit of the creditor, and he was at liberty to waive them if he pleased. What actually happened was that the creditor did not take possession of the security, and took no steps to obtain such possession, or to recover the money for nine years, during which period no interest has been paid. In our opinion, the fair inference of fact to draw from this state of things is that the creditor waived the provisions for securing and recovering the interest, and that the transaction must he looked at as simply one of a loan for the specified period at the agreed rate, that is, one per cent, per mensem. That rate has been allowed by the Judge, and for these reasons we think that the appeal should, and it is, dismissed with costs.