Shiv Dayal, J.
1. This is decree-holder's appeal since his application for execution has been dismissed by both the Courts below.
2. The decree was based on a compromise arrived at in a suit for the recovery of Rs. 870/-.
In the compromise it was agreed by the parties that the defendant would repay the debt in cash and kind by instalments :
11/2 mani millets (jwar) on Maghbadi 15 Samvat 2011,
11/2 mani wheat on Baisakh Sudi 15 Samvat 2012 and also Rs. 25/- in cash,
11/2 mani millets on Magh Badi 15 Samvat 2012, and
11/2 mani wheat on Baisakh Sudi 15 Samvat 2113.
It was further stipulated that in case of default the plaintiff would be entitled to recover the entire amount.
3. The decree-holder admitted to have receivedl from the judgment-debtor.
11/2mani millets in Phalgun Samvat 2011, and
11/2mani wheat in Jeth Samvat 2012,
25/- cash on June 17, 1955.
11/2 mani millets in Magh Samvat 2012 and Rs. 90/- cash, in lieu of 11/2 mani wheat, in Jeth Samvat 2013.
It has been thus admitted by the decree-holder that he received all the instalments, but not on the agreed dates. hE, therefore, claims the recovery of Rs. 606/8/- in this execution, because according to him the price of corn and the cash of Rs. 25/-, amounted to a total of Rs. 263/8/.
(3a) It is urged by Shri Naokar that the appellant was entitled to recover the amount which he had abandoned inasmuch as the respondent did not perform his part of the contract in strict compliance with the compromise decree. The learned counsel relies on Bhawandas Ferroomal v. Menghraj, 45 Ind Cas 324 : (AIR 1918 Sind 68), T. Barclay v. Mt. Dhandei, AIR 1923 Pat 322, and Dayaram Gidumal v. Nabibux, AIR 1929 Sind 98. In my opinion not one of these cases has any application here. The question considered in those decisions is 'the meaning of waiver under Article 75 of the Limitation Act.
4. Waiver is a 'voluntary and intentionalrelinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed. ' (See Corpus Juris Vol. 67). Waiver is express or implied; express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles a release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled. It was very aptly observed by Lord Wright in Ross T. Smyth and Co. v. Baliey, Son and Co., (1940) 3 All ER 60:
'The word waiver is a vague term used in many senses. It is always necessary to ascertain in what sense and what restrictions it is used in a particular case. It is some times used in the seme of election as where a person decides between two mutually exclusive rights.'
5. In the present case, the decree-holder having accepted the payments in kind and in cash after the dates on which they fell due, clearly amounted to waiver. When the first instalment fell due, and a default was committed it was open to the decree-holder to take out execution for the amount claimed in the suit.
Instead of taking that step, he accepted 11/2 mams of millets in Phalgun Samvat 2012. He repeated this conduct in respect of other instalments as well. The decree-holder, therefore, every time waived his right which had accrued to him. After thus receving all the instalments he cannot now turn round and claim the benefit of the exigibility clause.
6. This appeal is, therefore, without substanceand it is dismissed. However, I direct that the parties shall bear their own costs throughout.