Ghose and Rampini, JJ.
1. This is an appeal against a decree of the District Judge of Bhagalpur, affirming the judgment of the Munsif of Banka. The appellant before us applied to the Munsif on the 9th February 1892 for execution of a decree obtained by him against the respondents on the 18th April 1888. He had sued the respondents on a bond, and a compromise had been effected, making the sum claimed payable by instalments. This compromise was given effect to in the decree of the 18th April 1888. The first instalment was payable on the 26th April 1888, and admittedly more than three years have elapsed between that date and the date of the application to the Munsif for execution. But the dates of payment of the other instalments are within three years of the date of the application to the Munsif. The decree of the 18th April 1888 provides that if the instalments are not paid on the dates fixed for their payments, then 'the plaintiff will have the power to cancel the instalments and realize the entire amount with interest.'
2. The appellant when he applied to the Munsif for execution alleged that the first instalment had been paid, and applied for execution of his decree in respect of the other instalments. The judgment-debtors, however, denied that they had paid any instalment, and contended that the execution of the decree was accordingly barred by limitation.
3. The Munsif found both these points in favour of the judgment-debtors, and as already said, the District Judge affirmed his findings. Hence this appeal. Before us, it is urged (1) that the Munsif wrongly refused to admit in evidence an account book which the decree-holder wished to file in support of his plea of payment of the first instalment; and (2) that as by the terms of the decree of the 18th April 1888, on non-payment of any instalment he has the power, but is not obliged to treat the whole decretal amount as due, the rulings cited by the Munsif, viz., Judhistir Patro v. Nobin Chandra Khela I.L.R. 13 Cal. 73 and Mon Mohun Roy v. Durga Churn Gooee I.L.R. 15 Cal. 502 are inapplicable, and therefore, that whether the first instalment has been paid or not, the execution of the decree for the remaining instalment is not barred.
4. We will deal first with the second of these contentions. In support of this plea, the learned pleader for the appellants relies on the case of Chandra Kamal Das v. Bissessurree. Dassia 13 C.L.R. 243, and has also cited the cases of Asmutullah Dalal v. Cally Churn Mitter I.L.R. 7 Cal. 56, Nilmadhub Chuckerbutty v. Ramsodoy Ghose I.L.R. 9 Cal. 857, and Ram Culpo Bhattacharji v. Ram Chunder Shome I.L.R. 14 Cal. 352. But all these cases have been considered in the second of the cases referred to by the Munsif, viz., Mon Mohun Roy v. Darya Churn Gooee I.L.R. 15 Cal. 502. In this case it is said that the rule to be deduced from all the cases is that when a decree or order makes a sum of money payable by instalments on certain dates, and provides that on default of payment of one of the instalments, the whole of the money shall become due and payable, and be recoverable in execution, then under a 179 of the Limitation Act, as under corresponding articles in earlier Acts, limitation commences to run when the first default is made.' It is further said 'that there has been engrafted on this general rule an exception to the effect that if the right to enforce payment of the whole sum due upon default being made in the payment of an instalment has been waived by subsequent payment of the overdue instalment on the one hand and receipt on the other, then the penalty having been waived, the parties are remitted to the same position as they would have been in if no default had occurred. The authorities are quite consistent with one another. The only case which seems to me to conflict in any way with these cases is the case of Chandra Kamal Das v. Bissessurree Dassia 13 C.L.R. 243.' (This is the case relied on by the learned pleader for the appellant before us)--'There it does appear to me to have been held that although in a case similar to the present defaults had occurred and no subsequent payment had been made in respect of the kists in default, it was still open to the creditor to say that the provision making the whole sum payable on default of payment of one instalment was one only for his protection, and that he might afterwards waive it and put it out of the way as regards the period of limitation. This seems to me irreconcilable, if I correctly understand it, with the current of decisions on the subject, and especially inconsistent with the decision in Chenibash Shaha v. Sridam, Mandal I.L.R. 5 Cal. 97. I am disposed to think that there must have been some peculiarity in the case beyond what appears in the report, because the learned Judges cite as an authority in support of their view the case of Asmatullah Dalal v. Kally Churn Mitter I.L.R. 7 Cal. 56 which appears to me, as I understand it, to be an authority for the contrary view.'
5. It is clear then that the learned Judges who decided Mon Mohun Roy v. Durga Churn Gooee I.L.R. 15 Cal. 502 did not approve of the decision in Chandra Kamal Das v. Bissessurree Dassia 13 C.L.R. 243 and dissented from the view therein expressed as strongly as it was possible for them to do. As the ruling in this case stands alone and is contrary to the current of decisions in respect of this matter, we are unable to follow it. We cannot hold that mere abstinence from suing can amount to waiver, or that there can be any waiver so as to affect limitation save by payment and acceptance of an overdue instalment. Nor do we think that any distinction can be drawn, as has been attempted in this case to be drawn, between a case in which it is provided that on non-payment of an instalment the whole amount shall become due, and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. There seems no reason why limitation should begin to run in the one case and not in the other. Finally, we may say that the clause in the decree on which the appellant relies in this case to the effect that on nonpayment of an instalment it shall be in the power of the decree-holder to realize the full amount appears to us to have probably never been intended to give the decree-holder the option of waiving the default if he pleased, and that it implied nothing more than the usual condition that on non-payment of an instalment the whole decretal amount would become exigible.
6. Another case has been cited before us, viz., Bir Narain Panda v. Darpa Naram Prodhan I.L.R. 20 Cal. 74. The terms of the bond sued on in that case are very similar to those of the present appellant's decree, for the bond provided that on default of payment of one instalment, the plaintiff should be competent to take out execution and realize the full amount. The decree-holder, as in this case, alleged payments, which were found not to have been made, and applied for execution of the whole decree. He did not, as pointed out in the judgment in this case, '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,' it is said, '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 Mohun Roy v. Durga Churn Gooee I.L.R. 15 Cal. 502 that an application of that kind would be barred.' The contention was, however, raised in the High Court, and the pleader for the appellant in this case has pressed upon our attention the passage in that judgment in which it is said--' But it has been argued that though that was so, yet, as the proviso authorising the decree-holder to execute the 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 the proviso and claim execution only in respect of the instalments that were not barred.' But this can scarcely be said to be in favour of the present appellant, for though no doubt the Court did not say that this plea would not be a good one, if raised, but merely contended itself with observing that it had not been raised in the Courts below and could not have been raised in the circumstances of the case, yet it did not in any way express approval of this doctrine. Hence, taking into consideration the state of the authorities on this point, we are not prepared to admit that there is any force in the contention of the appellant that, owing to the terms of the decree, he had a right to waive any default that may have been made in payment of the first instalment and that even if he merely abstained from taking out execution on such a default being made limitation did not necessarily begin to run against him.
7. We now turn to the first of the appellant's pleader's contentions. We are of opinion that the Court of First Instance should not have refused to admit in evidence the account book which the decree-holder wished to produce, and prove, when his first witness was under examination. He wished to produce this account book to disprove the plea of non-payment set up by the judgment-debtors. He could not be expected to have anticipated this plea at the time of his presenting his application for execution, and there is nothing which makes it necessary for him to file with his application all documents which on an objection to execution being raised by the judgment-debtors it may be necessary for him to produce in Court to repel that objection. The learned pleader for the judgment-debtors argues that under the last clause of Section 258, Civil Procedure Code, as the payment in question was not certified to the Court, the decree-holder was not entitled to prove it. We are, however, of opinion that though under the provisions of Section 258, Civil Procedure Code, the payment in question, if made, could not be recognized as a payment or adjustment of the decree, yet it was and is competent to the decree-holder to prove this payment for the purpose of showing that the period of limitation did not begin to run in this case until the default made in respect of the second instalment. See the Full Bench case of Fakir Chand Bose v. Madan Mohan Ghose 4 B.L.R. F.B. 130. It is true that this case refers to the provisions of Section 206 of Act VIII of 1859, but they do not appear to us to be on this point materially different from those of Section 258 of the present Code. We are, therefore, unable to agree with the ruling in the case of Mitthu Lal v. Khairati Lal I.L.R. 12 All. 569 decided by Tyrrell, J., who appears to have considered that in consequence of the alteration in the wording of the section, the Full Bench ruling of this Court cited above ceases to have any weight.
8. We, therefore, consider that this case must be remanded to the Court of First Instance with directions to admit in evidence the account book, which the decree-holder wished to produce, and after giving an opportunity for its being proved that it will come to a finding as to the alleged payment of the first instalment. It may be that if the account book be found genuine, the evidence as to the payment already given will present a different aspect.
9. If the alleged payment be found not to have been made, then in accordance with our decision on the appellant's first contention, the application for execution should be rejected. If the alleged payment be found to have been made, the decree-holder's application should be allowed.
10. Costs to abide the result.