Judgment

SARKAR, J.: On May 1, 1947, a decree was passed in favour of the appellant bank against the respondents by consent of parties for payment of Rs. 31,000 in the manner specified. The decree provided that if the respondents failed to pay any of the instalments mentioned in it within four months of the date of its becoming due, the appellant bank "shall deem all ... instalments in default and shall be entitled to realise all the said amounts by execution" The amounts payable under the decree by May 30, 1947 were all duly paid. That left a sum of Rs. 21,000 payable by six annual instalements, each payable on the 30th December of a year, the first instalment being payable in 1947 and the last in 1952. None of these instalements was paid and an application for realising them by execution was made on August 26, 1957. In the meantime a petition for winding up the appellant bank had been presented on May 11, 1948 and an order for winding up had been made on August 3, 1948. Since then the appellant bank has been in the course of winding up. The application for execution was made by the liquidator in the course of the winding up.

2. Under Art. 182 (7) of the First Schedule to the Limitation Act, 1908, an application for execution is barred if not made within three years from the date on which the amount sought to be realised was payable under the decree. On December 30, 1953, S. 45-O was introduced in the Banking Companies Act, 1949 by the Banking Companies (Amendment) Act, 1953. Sub-section (1) of that section is in these terms:

S. 45-O. (1) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded.

The appellant bank claims that this section saves its application for execution from the bar of limitation imposed by Art. 182 (7). The respondents answer to this contention is first that S. 45-O has no retrospective operation; it does not revive a debt which was already barred at the date of its enactment. Then they say that all the instalments fell due on April 29, 1948 by the operation of the default clause and, therefore, they were all barred under Art. 182 (7) by December 30, 1953 when S. 45-O was brought on the statute book. Thirdly they say that if it is held that the default clause gave the appellant bank an option which it had not exercised and the right to apply for execution in respect of the instalments arose on the dates they respectively fell due, the instalments which fell due on December 30 of the years 1947, 1948 and 1949 had become barred before the date of the enactment of S. 45-O and that section could not revive them and the instalments which fell due in the years 1948, 1949, 1950, 1951 and 1952 were not saved from the bar of limitation by S. 45-O as it provided for exclusion of a period commencing from the presentation of the petition for winding and was, therefore, confined to cases where the right had arisen before such presentation, which the right in regard to these instalments had not.

3. First, as to the effect of the default clause, no real difficulty arises. It obviously gave an option to the appellant. As was said in Ram Culpo Bhattacharji v. Ram Chunder Shome, (1887) ILR 14 Cal 352 at p. 354 "the proviso by which the whole amount of the decree becomes due upon default in payment of any one instalment is a proviso which, look at it 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 security, and in security I include decree , for the benefit of one individual party, he can waive, it, if he thinks fit." There is not the least doubt that the default clause in the case in hand was intended fo