William Comer Petheram, C.J.

1. We think that this appeal must be allowed. The questionis whether a particular decree is barred by limitation. The decree is a decreefor the recovery of a certain sum of money by instalments, and it contains aproviso 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 madein the payment of one instalment, and therefore the creditor might, if he hadthought 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, hisremedy is now barred by limitation; and consequently the only question iswhether, when default is made under such circumstances, the judgment-creditoris bound, at his peril, to put his decree into force for the whole amount, andwhether, if he does not, the Statute runs against him.

2. A good deal has been said about the wording of thedecree, but we do not think it very material that we should consider theprecise wording. The proviso by which the whole amount of the decree becomesdue upon default in payment of any one instalment is a proviso which, look atit 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 securityand in "security" I include "decree," for the benefit ofone individual party, he can waive it, if he thinks fit, and consequently theonly question which arises in a case of this kind is the same question as thatwhich 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 hisright 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 thiscase, we do not think there can be any doubt that he did waive it, because whathe says, and what is uncontradicted, is that, although there was a default inthe payment of an instalment, the creditor accepted so much of it as was notpaid 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 thedecree for the whole amount; and inasmuch as this proviso was for his benefithe might or might not take advantage of it as he pleased. Under thesecircumstances we think that this creditor did waive the right which he hadunder the decree to enforce it for the whole amount in the event of a defaultbeing made in the payment of any instalment, and having waived it, the decreestill remained a decree for the recovery of the sum decreed by instalments, andtherefore the Statute of Limitations did not run against him.

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

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Ram Culpo Bhattacharjivs. Ram Chunder Shome and Ors.(11.03.1887 - CALHC)