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Ram Culpo Bhattacharji Vs. Ram Chunder Shome and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal352
AppellantRam Culpo Bhattacharji
RespondentRam Chunder Shome and ors.
Excerpt:
decree payable by instalments - instalment, failure of, whole sum decreed to fall due--right of decree-holder to waive his right to execute the whole decree--waiver--limitation act, xv of 1877, schedule ii, article 75. - .....consider the precise wording. the proviso by which the whole amount of the decree becomes due upon default in payment of any one instalment is a proviso which, look at it how you will, is put in for the benefit of the creditor, the decree-holder, and his benefit alone; and when a proviso is put into a contract or security and in 'security' i include 'decree,' for the benefit of one individual party, he can waive it, if he thinks fit, and consequently the only question which arises in a case of this kind is the same question as that which arises under article 75 of schedule ii of the limitation act, namely, whether the decree-holder did, at the time when default was made, waive his right to the whole sum that was decreed to him or whether he did not.3. on the findings in this case, and on.....
Judgment:

W. Comer Petheram, C.J.

1. We think that this appeal must be allowed. The question is whether a particular decree is barred by limitation. The decree is a decree for the recovery of a certain sum of money by instalments, and it contains a proviso that, in the event of default in the payment of any of the instalments, the whole sum shall become due, It is found, as a fact, that default was made in the payment of one instalment, and therefore the creditor might, if he had thought fit, have issued execution for the whole amount due under the decree, and that at a period which is so long ago that, if he was obliged to do it, his remedy is now barred by limitation; and consequently the only question is whether, when default is made under such circumstances, the judgment-creditor is bound, at his peril, to put his decree into force for the whole amount, and whether, if he does not, the Statute runs against him.

2. A good deal has been said about the wording of the decree, but we do not think it very material that we should consider the precise wording. The proviso by which the whole amount of the decree becomes due upon default in payment of any one instalment is a proviso which, look at it how you will, is put in for the benefit of the creditor, the decree-holder, and his benefit alone; and when a proviso is put into a contract or security and in 'security' I include 'decree,' for the benefit of one individual party, he can waive it, if he thinks fit, and consequently the only question which arises in a case of this kind is the same question as that which arises under article 75 of schedule II of the Limitation Act, namely, whether the decree-holder did, at the time when default was made, waive his right to the whole sum that was decreed to him or whether he did not.

3. On the findings in this case, and on the facts in this case, we do not think there can be any doubt that he did waive it, because what he says, and what is uncontradicted, is that, although there was a default in the payment of an instalment, the creditor accepted so much of it as was not paid at the time afterwards, and therefore it is obvious that he did waive it, because he did not, as he was not bound to, insist upon putting into force the decree for the whole amount; and inasmuch as this proviso was for his benefit he might or might not take advantage of it as he pleased. Under these circumstances we think that this creditor did waive the right which he had under the decree to enforce it for the whole amount in the event of a default being made in the payment of any instalment, and having waived it, the decree still remained a decree for the recovery of the sum decreed by instalments, and therefore the Statute of Limitations did not run against him.

4. For these reasons we think that the Judge was wrong in holding that this decree was barred by limitation, and his judgment must be reversed with costs.


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