Shiv Dayal Shrivastava, J.
1. This revision is directed against the judgment and decree of the Small Cause Judge, Gwalior, dismissing the plaintiff's suit as barred by time.
2. The suit was based on an instalment Bond executed by the defendants Parma, Hariram and Tillu on July 24, 1952 in favour of Devidas. Defendants Kama and Devi were the sureties. The bond was for a sum of Rs. 350/ which was repayable as follows:
(a) The debtors were to repay Rs. 200/- out of the principal amount and Rs. 40/- by way of interest, totalRs. 240/-, within one year by monthly instalments of Rs. 20/- each.
(b) The balance of Rs. 150/- was to be paid within one year together with interest thereon at Rs, 2 per cent, per month.
(c) In case there was default in the payment of any monthly instalment or interest for 3 months, the creditor was given the right to recover the whole amount at once.
3. It was alleged in the plaint that the defendant paid in all Rs. 136/- between September 13, 1952 and July 11, 1956. The claim in the suit was for Rs. 350/- the principal amount, and Rs. 32/8/- as interest total Rs. 382/S/-. This suit was instituted on July 20, 1956.
4. The learned trial Judge held that the period of limitation for the present suit started from the first default whence it was time-barred,
5. Shri Pataukar, learned counsel for the petitioner, contends that the plaintiff was entitled to the benefit of his waiver within the meaning of Article 75 of the Limitation Act. According to the learned counsel the plaintiff's inaction to enforce the right given to him in the bond on the default of earlier instalments amounted to 'waiver' and the plaintiff had the right to bring this suit on the default in respect of the last instalment. He relies on the decisions reported in Lasa Din v. Mt. Gulab Kunwar, AIR 1932 PC 207: (59 Ind App 376); Dada-rao Krishnaji v. Jatanbai Bhikamchand, ILR (1943) Nag 331 : (AIR 1943 Nag 284); Swavamber Singh v. Ghasiley Ram, AIR 1052 All 479; Mahomed Hus-sain v. Sanwal Das, AIR 1934 All 397 (FB) and Mt. Shashikantabai. v. Rajkishan, 1959 MPLJ 23: (AIR 1959 Madh-Pra 336).
6. It is true that in the case reported in 59 Ind App 376: (AIR 1932 PC 207), the Privy Council held that the default clause was exclusively for the benefit of the mortgagee and their Lordships held that if by a breach of the contract committed by the mortgagor the mortgage money became immediately due, the intention of the parties was clearly defeated and that what was agreed to by them as an option in the mortgagees' was converted into 'an option in the mortgagor'. The mortgagor could not in that way take advantage of his own default and acquire thereby a right to redeem before the period fixed in the bond expired. It must, however, be remembered that the same principle cannot be applied to a simple money bond and that has been the consistent view of the Nagpur High Court.
7. Shri Patankar has strongly relied in support of his argument on a decision of Vivian Bose J. (as he then was) in Gulabrao v. Canpat, ILR (1943) Nag 630 : (AIR 1942 Nag 138). There it was no doubt observed that the exigibility clause was for the benefit of the creditor and to interpret it otherwise would turn it into a handicap. Bose J., found support for his view in Lasadin's case which he applied to the case before him. But on a careful perusal of the whole judgment it becomes obvious enough that the decisions in Vishwanath's case and Sham Rao's case were neither dissented from nor distinguished; on the contrary, they were noticed and on their basis it was observed that the question had been 'set at rest'. In the case before Bose J. the creditor had already brought suits for defaulted instatments and that fact was held to amount to a waiver of the benefit under the default clause. It was further observed that in case of a double cause of action it was for the plaintiff to elect.
8. Then the case of Firm Hardeo Dwarkadas v. Firm Binjrai Hariram, ILR (1948) Nag 334: (AIR 1943 Nag 170) was in favour of the judgment-cre-ditor on the question of limitation. There, the de-cree provided for instalments and also contained the usual default clause. It was held that the decree-holder was entitled to take out execution of his decree so as to recover instalments not barred by limitation, even though he had already made an unsuccessful attempt to recover the entire amount On default of an instalment. That case is clearly distinguishable, and the distinction was specifically pointed out in the case of Shahji v, Tukaram, ILR (1945) Nag 955: (AIR 1946 Nag 117) where the decisions in Vishwanath's case and Sham Rao's case were followed and Gulab Rao's case was explained and distinguished.
In this case it was further held that waiver could not be presumed; it had to be specifically pleaded and supported by cogent evidence. The case of Hardeo Dwarkadas as also the cases reported in 1959 MPLJ 23: (AIR 1959 Madh-Pra 336) and Abbas Ali v. Baluram, 1958 MFC 788, therefore, do not help the plaintiff in the present case, because those were cases under Article 182 of the Limitation Act and not under Article 75.
9. Then in Raghunath Dass Madangopal v. Warlu Bapu, ILR (1947) Nag 947: (AIR 1948 Nag 225) the case law was noticed by Padhye J. and it wa.s held that once the exigibility clause came into play, the primary terms about repayment were superseded and the cause of action for the recovery of the instalments, due or not due, under the original agreement accrued, unless it was waived.
10. I see no conflict between the Nagpur decisions and the law must be taken to be settled so far as this State is concerned. On a review of the entire ease law on the subject, I would sum up the true legal position thus :
1. As soon as the exigibility clause comes into operation, the cause of action for the recovery of the whole amount due accrues and that is the starting point of limitation for the suit, unless there is waiver.
2. Waiver is the abandonment of a right and fit must, therefore, be intentional.
3. A waiver may be express or implied. It may be implied from conduct.
4. The plaintiff's intention to waive his right must be manifest by some overt act. For instance, acceptance of a payment specifically made towards the satisfaction of a particular defaulted instalment.
5. Mere abstinence from suing for the whole amount clue on a default or allowing a benefit to pass unnoticed docs not constitute waiver within the meaning of Article 75.
6. Waiver must be specifically pleaded and must also be proved. The onus of proving waiver is on the creditor.
7. Waiver is a mixed question of law and fact and it has to be considered in each case whether the plaintiff did waive his right to bring a suit at once on the happening of the default. That must depend on some definite act or forbearance on the part of the creditor,
8. Lasadin's case, 59 Ind App 376 : (AIR 1932 PC 207) can be applied only to a suit on foot of a mortgage but not to the case of a bond under Article 75.
11. It is unnecessary to deal with the Allahabad and Patna decisions which were referred to me at the bar.
12. Shri Patankar has, in the alternative, urged that the position of the law was not clear and it would work hardship, if the plaintiff was not allowed a fresh opportunity to plead and prove the waiver. I have given a very considered thought tothis submission. It is true that in Raghunath Dass's case the suit was remanded to the trial Judge and a i'resh opportunity was given to the plaintiff to prove waiver.
But the circumstances of that case were quite different. There, Padhye J. found that the trial Judge had acted in undue haste, that all accounts had been furnished by the plaintiff and that from the facts pleaded waiver could be implied although not stated with clarity. What I find here is that the creditor no doubt alleged that the debtor had made some payments, but the allegation was very vague. When he examined himself, even then he did not state clearly thc dates and amounts of the payment. For these reasons, I do not think that the matter should be allowed to be reopened at this late stage. Shri Patankar has drawn my attention to the fact that before the Small Cause Judge the defendant raised the objection of limitation at the fag end of thc trial. But, if the plaintiff himself did not do his duty, he cannot take advantage of the defendant's indolence in raising the plea.
13. This revision is, therefore, without substance and is accordingly dismissed with costs.