1. This is a Rule calling upon the opposite party to show cause why the judgment and decree of the Subordinate Judge of Rajshahye, passed in the exercise of his powers of a Court of Small Causes, should not be set aside; and the ground stated in the petition is this, that the learned Small Cause Court Judge ought to have held that, under the circumstances of the case, there was no waiver on the part of the plaintiff and hence the suit was barred by limitation.
2. The learned pleader who appears in support of the decree has endeavoured to uphold the judgment on the ground that the case is not one within the purview of Article 75 of the first Schedule of the Limitation Act, and that the provisions of the bond which relate to default have effect merely as regards the payment of interest and are not a condition that if there be default in the payment of one instalment, then the whole amount should become due and payable, so as to bring the matter within the scope of Article 75.
3. I think, on a consideration of the bond, which has been translated to us, that that argument does not hold good, and that the case is governed by Article 75. The question then resolves itself into this, whether there has or has not been a waiver? It has been contended that there is no waiver, on the strength of the decision in the case of Mohesh Chandra Banerji v. Prosanna Lal Singh 31 C. 83 which, it has been contended, lays down the general rule that where an instalment bond gives the creditor the right to sue for the whole amount due under the bond, on default of payment of a single instalment, there is no waiver of that right by acceptance of part of an overdue instalment, or by receipt of interest. And it has been said in this case that all that was done by the creditor was to receive part-payment of an overdue instalment. That portion of the judgment on which reliance has been placed appears to be obiter dicta: for the learned Judges after discussing the case at some length proceed to say this,--' We, therefore, consider that there was no waiver on the plaintiff's part and we also agree to the further contention of the plaintiffs pleader that if there was any waiver, there was a fresh default made in 1305, which was not waived, and which entitles the plaintiffs to bring this suit.' If, therefore, there was, as the judgment states, any fresh default made in 1305, as to which there was no payment in part or in whole, the previous observations in the judgment are obiter dicta.
4. In my opinion the question of waiver is a question of fact to be determined according to the circumstances of each particular case. If it be a question of fact, then it is not one upon which we can interfere in revision. But I should wish to point out that in the present case there seems no ground for supposing that, dealing with the matter as a question of fact, the Small Causa Judge has come to a wrong conclusion. For we find this, that in three successive years there was default in payment of the whole sum due; that in each of these three years part payment of the amount due was accepted, that in one of such cases, at least, the payment was made before the hist was actually due; nextly, that five years are then allowed to elapse before suit without, any action being taken by the creditor in whom the right of immediate suit is said to have existed; and, lastly, when the creditor himself does sue after a long lapse and after receipt of part-payment of instalments, he himself says that he had waived his right to sue under the document.
5. Under these circumstances, I think that the decision of the lower Court is correct and that the Rule must be discharged with costs, two gold mohurs.
6. I agree. It seems to me that the only construction possible of the bond is that placed upon it by the petitioner, by the lower Court, and by the opposite party in his plaint. The case, therefore, clearly falls under Article 75 of the first Schedule to the Limitation Act of 1908.
7. As regards waiver I have nothing to add to what my learned brother has said.