1. No appearance has been made before us on behalf of the respondent in this case. We have been obliged to hear the appeal ex parte.
2. The case is one not of an uncommon character. A decree was passed providing for payment by instalments. It provided that, on failure to pay any one instalment, the debtor should become liable to have the whole decree executed at once at a particular rate of interest therein mentioned.
3. This was an application made for the execution of the whole decree with interest at the rate provided for in that decree.
4. The Courts below appear to have held that default was made in the very first instalment, which was to have been paid in March 1289; and they have ordered execution in respect of the subsequent instalments, which were not barred, it being admitted that the first instalment was barred.
5. It is contended for the judgment-debtor, who is the appellant before us, that the application for execution was barred by limitation. It is argued that there was no option to waive the right to realize the whole amount of the decree upon the first default, and that as the decree-holder had not done so, and as he did not bring this application within three years of the first default, the application was barred.
6. The Courts below relied upon a decision of this Court in Nilmadhub Chuckerbutty v. Ramsody Ghose I.L.R. 9 Cal. 857. It was there held that, as the decree-holder had the option, on default of payment of any one instalment, to execute the whole decree, and did not exercise that option but received instalments due subsequent to the default, he must be considered to have waived his right to execute the whole decree. The Judges who decided that case decided it upon the terms of the decree before them. Having regard to the terms of the decree in this case We think that the ruling in Nilmadhub Ckucherbutty v. Ramsody Ghose I.L.R. 9 Cal. 857 relied upon by the Courts below, is not applicable. Here the decree distinctly provides that, upon failure to pay any one instalment, the agreement for payment by instalments shall be cancelled and the decree-holder shall thereupon realize the whole decree, and shall also obtain from the judgment-debtor interest at a certain specified rate. The decree-holder in the present instance does not profess to have waived his claim, for he seeks to realize the whole decree, and he also claims interest at the rate stipulated. He therefore seeks to take advantage of the provisions of the decree. He must, we think, be also bound by any disability which may arise upon a proper construction of that decree. Upon the terms of the decree we think that he had no option to waive his right to execute it for the whole amount; and, having neglected to take advantage of the privilege given in that decree, he is now too late to realize anything.
7. We accordingly allow this appeal, set aside the orders of the Courts below, and dismiss the application, with costs in this Court and the lower Courts.