SHIAM LAL Vs. JOTIA

JUDGEMENT

(1.) This suit has been dismissed on the ground of limitation. The learned Judge has in the first place misread the document and in the next place misapplied the law.

(2.) The document nowhere says that in case of default of payment of the first instalment the plaintiff was entitled to recover the entire amount. The words are that on the expiry of the term for payment of half the sum with interest and compound interest the creditor has a right to recover it.

(3.) That obviously means to recover the amount of first instalment with interest. It then goes on to say or to recover the entire amount after the expiry of the last term with interest and compound interest. Obviously the right to recover the whole amount did not accrue till after the expiry of the date fixed for the second instalment. The learned Judge apparently had in mind the cases of this Court under Art. 132. Lim. Act, which is applicable to mortgages. The bond in suit however was not a mortgage deed at all. It was an instalment bond within the meaning of Art. 75, Lim. Act. Under that Art. it is open to the obligee to waive the benefit of the provision to recover the amount in the case of first default. He has done so and has brought his suit after a fresh default has been made. The suit is within three years of the time fixed for the second payment. It is accordingly within limitation, I may point out that each is to be governed by the article applicable to it is made abundantly clear by the case of Gaya Prasad V/s. Sher Ali (1917) 15A LJ 313. The revision is accordingly allowed and the decree of the Court below sat aside and the claim decreed with costs in both Courts.