OSMAN SHAHA Vs. MAHOMED AMAR SIRKAR

JUDGEMENT

(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 Art. 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 Art. 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 Art. 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/s. 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.