Prinsep and Banerjee, JJ.
1. The only question raised in this case is whether execution is barred with reference to the instalments that fell due within three years before the date of the last application for execution. The decree, which was based upon a compromise, directs payment by instalments, with a proviso that it default is made in the payment of any instalment, then, without waiting for default in other instalments, the plaintiff shall be competent to take out execution and realise the whole amount of the kistbundi together with interest. In the application for execution the decree-holder alleged that since 1295 the judgment-debtors had made default in the payment of the instalments, and that consequently the remaining instalments had all become recoverable, and he accordingly asked for execution of the whole decree after deducting the sums alleged to have been paid. The judgment-debtors pleaded limitation and denied the payments said to have been made in 1293 and 1294. The Courts below have found that the decree-holder has failed to make out that any payment was made in 1293 and 1294, and they have accordingly held that as the present application is made more than three years after the date of the first default, the application is barred. The decree-holder did not, in either of the Courts below, make any application to be allowed to execute the decree in respect of the instalments that fell due within three years before the date of his application. But the Court of First Instance, in its judgment, noticed the point as to whether such application, if it had been made, would not be barred; and it held upon the authority of the case of Mon Mohan Roy v. Durga Churn Gooee I.L.R. 15 Cal. 502, that an application of that kind would be barred. It is admitted before us that, upon the facts found by the Courts below, the decree-holder is barred in his application to execute the entire decree, as the default upon which the right to execute the entire decree must be based occurred more than three years before the date of the application. But it has been argued that though that was so, yet as the proviso authorising the decree-holder to execute the entire decree in the event of default in the payment of any instalment was a provision for his benefit, it was competent to him to waive the benefit of that proviso and claim execution only in respect of the instalments that were not barred. In the first place, we do not think that that was the case made in the Courts below; and in the second place, we cannot, in the face of the present application, say that the proviso may be waived, seeing that in this case there has been no acceptance of payment subsequent to the first default nor a mere abstinence on the part of the decree-holder from seeking the benefit of the proviso; but, on the. contrary, there has been an affirmative act done by him, showing that he did not waive the benefit of the proviso, but claimed to execute the entire decree. The facts of this case are therefore very much stronger than those of the case of Mon Mohan Roy v. Durga Churn Gooee I.L.R. 15 Cal. 502, and we think that the decree-holder is not entitled to execute the decree.
2. The appeal is therefore dismissed with costs.