T.C. Shrivastava, J.
1. This petition for revision has been filed by the decree-holder whose application for execution of a decree against the non-applicants has been held barred by time.
2. On 27-10-1951 the decree in question was passed in favour of the applicant against the non-applicants for Rs. 500/- payable in five instalments of Rs. 100/- each. The first instalment fell due on 1-2-1952 and the subsequent instalments fell dueevery three months thereafter. It was ordered in thedecree that after any instalment had been defaulted and a month had passed after the default, the wholeamount would become payable. ,d eq'r erkyck okftcqy cnk gks The judgment-debtors paid nothing and the decree-holder filed the present execution on 14-5-1955. She has claimed recovery of the last four instalments with interest stating that the first instalment which fell due on 1-2-1952 had become time-barred.
3. On behalf of the judgment-debtors it was stated that as the first instalment was defaulted, the whole amount became due on 1-3-1952 and as the-decree-holder did not file the execution petition with-in three years from that date, the present petition was barred by time. This contention was accepted by the executing Court. The decree-holder has therefore come up in revision.
4. On behalf of the decree-holder, reliance was placed on the decision in Sheo Lal v. Devi Das, AIR 1952 All 900 (FB). In that case a preliminary instalment decree was passed in a mortgage suit with an exigibility clause. The question arose in the context of an application for final decree. It was held in that case that the default clause is for the benefit of die decree-holder and he has always the option to waive it. Referring to the decision in Lasa Din v. Mt.Gulab Kunwar, 1932 All LJ 913: (AIR 1932 PC 207), it was observed :
'Adopting the observations of their Lordships to the case in hand it may be said that the condition being exclusively for the benefit of the decree-holder, it purports to give him an option either to enforce it at once or not to endorse it and to recover the instalments as stipulated. If on the default of the judgment-debtor by the breach of the terms of the decree providing for payment of instalments the right to apply for the final decree accrues once and for all, it is clear that the intention of the parties is defeated and what was intended to be for the benefit of the decree-holder is turned to his disadvantage and leaves no option to him.'
It has been further laid down in that decision that the non-exercise of the option on the previous default is enough to show that the default was condoned or waived. In conclusion it was stated that whatever the language of the decree, the default clause is to be interpreted liberally and for the benefit of the decree-holder and an option in his favour must be inferred unless it was excluded by express words.
5. The non-applicants have cited Vishwanath v. Sadashiva, AIR 1932 Nag 1 (FBX to support then contention that the execution petition was barred by time. This case arose in the context of an instalment bond. It was held that on default by the debtor, thewhole sum becomes due within the meaning of Article 75 of the Indian Limitation Act and when a suit is barred by that article, the creditor cannot sue for instalments which under the primary terms would have fallen due after the default.
This case was referred to in Raghunathdas v. Warlu Bapu, AIR 1948 Nag 225, wherein it was held that once he exigibility clause comes into operation,the primary terms about repayment are superseded and the creditor cannot sue for instalments. It was)also laid down that the clause being for the benefit of the creditor he could waive it without the consent of the debtor, but he must specifically plead and prove such waiver. The third proposition which was laid down in this decision is, that a mere inaction on the part of the creditor such as abstinence to sue does not amount to waiver.
6. Shri Segal for the non-applicants also sought support for his contention from the decision in Shahaji v. Tukaram, AIR 1946 Nag 117. Before I consider that case, I may refer to another decision of this Court in Firm Hardeo Dwarkadas v. Firm Binjraj Hariram, ILR (1943) Nag 334: (AIR 194Nag 170). In this case, there was a decree for instalments with a clause that in default of payment of any instalment, the defendants will be liable to pay the whole amount remaining due at once. The decree-holder filed an execution for recovery of the whole amount on the default of one instalment) After this execution application was dismissed as infructuous, the decree-holder again applied for recovery of instalments which had fallen due.
It was contended by the judgment-debtor that the whole amount had become due and after the decree-holder had made his choice by executing the decree for the whole amount, he could not claim the instalments. The contention was repelled and it was held that the only ground on which such a contention could be raised would be on the ground of estoppel but that would apply only to cases where the decree-holder had recovered more than the instalments that were then due. In this view the decree-holder was permitted to execute the decree for instalments.
7. Corning now to AIR 1946 Nag 117, Article 75 of the Limitation Act in connection with an instalment bond was considered in this case. Puranik J. affirmed the proposition that it was necessary for the plaintiff in such a case to plead specifically on the question of waiver. The decision in AIR 1932 Nag 1 (FB) (supra) was followed. A reference was made to the decision in ILR (1943) Nag 334: (AIR 1945 Nag 170) (supra) with the following observations :
ILR (1943) Nag 344: (AIR 1943 Nag 170) was a case which dealt with an instalment decree and fell under Article 182, Limitation Act and not under Article 75 of that Act with which I am concerned jn this case.'
8. The question was also considered by the Madhya Bharat High Court in Shamlal v. Mahipat Singh, AIR 1952 Madh-B 119, and it was held that the decree-holder's claim to the instalments which are not time-barred under Article 182(1) is not barred on account of his failure to waive his right to claim the entire decretal amount on the first de~ fault.
9. In the light of these decisions to which I1 have referred above, the following position seems to emerge in respect of instalment bond as also instalment decrees with exigibility clauses :
(i) The clause is for the benefit of the decree-holder and he can waive the benefit thereof.
(ii) Whatever the terms used in the bond or the decree, unless they expressly exclude an option to the decree-holder, there is always an option in his favour either to sue for the whole amount on default or to claim instalments due.
10. There is however, difference of opinion on the question whether it is necessary for the creditor to specifically plead and prove waiver. On the one hand, it has been held in the case of instalment bonds that waiver must be specifically pleaded and mere forbearance to sue does not amount to such waiver. On the other hand, it has been held in the case of instalment decrees that waiver can be presumed ifthe decree-holder does not enforce the exigibility clause and claims only the instalments due.
11. The question is, whether the view taken in 4 cases falling under Article 75 of the Limitation Act should apply to the case of instalment decrees. It may be observed that applications for recovery of amounts due on instalment decrees are governed by Article 182 (7) when the* recovery is for instalments and by Article 181 when the recovery is for the whole amount. The language in Art, 75 refers expressly to waiver by the creditor. No such reference occurs in Articles 181 or 182, The considerations in appreciating the implications of the two articles are different as appears from the observations of Puranik J. in AIR 1946 Nag 117 (supra) quoted above. Whatever may be the position about instalment bonds, I respectfully agree with the views taken in ILR (1943) Nag 334: (AIR 1943 Nag 170) and in AIR 1952 Madh-B 119 (supra) that in the case of Instalment decrees, the decree-holder can always fall back on his primary right of recovering the instalments and he need not specifically plead and prove waiver of the exigibility clause.
12. In this view, the instalments which fell due within three years prior to the presentation of execution petition are within time. The petition was filed on 14-5-1955. The dates on which the five instalments fell due were 1-2-1952, 1-5-1952, 1-8-1952, 1-11-1952 and 1-2-1953. The period of one month allowed as grace has relevancy with respect to the whole amount falling due and has nothing to do with the dates when instalments fell due. The first two instalments are thus barred by time and the decree-holder is entitled to recover the last three.
13. Accordingly, the order dismissing the execution petition is set aside. The Court shall proceed with the petition in accordance with law but the recovery shall be confined to three instalments which became due on 1-8-1952, 1-11-1952 and 1-2-1953, together with interest thereon according to the terms of the decree. As success is divided, I order that the parities bear the costs of this revision as incurred.