The main legal point established in the judgment is the requirement of pleading and proving waiver to claim the benefit of limitation under Art.37 of the Limitation Act, 1963 in chitty bond cases.

1. The facts are not in dispute. Only the question of law pertaining to limitation requires to be decided in this second appeal.

2. The appellant was a foreman conducting chitties. The first defendant was a subscriber to a chitty, and the second defendant was a surety in a chitty bond executed by the first defendant. The first defendant became defaulter in regard to payment of subscription after the 22nd instalment when there were 28 more instalments for the termination of the chitty. The payment for the 23rd instalment had fallen due on 16 8 1964. On 11-3-1965 the plaintiff (appellant) sent a registered notice to the defendant claiming payment for the twenty-eight instalments payable after the 22nd instalment. The suit was filed on 22-3-1968. The question is whether the plaintiff's suit is barred by limitation. Both the courts below have dismissed the suit taking the view that the suit was barred by limitation.

3. Shri. P. Sukumaran Nayar, the learned counsel for the appellant - plaintiff, contends that the courts below went wrong in finding that the suit claim was barred by limitation. The Article of the Limitation Act which would apply to the case has to be considered before proceeding further. The learned Subordinate Judge has referred to Art.75 of the Limitation Act, 1908, corresponding to Art.37 of the Limitation Act, of 1963, and said that in view decision in (Ext. P1) Velayudhan v. Appavu Muthdliar (1963 KLT. 277) the bond-in question (Ext. P1) could not be said to be a bond simpliciter coming under Art Clause.75 of the Limitation Act of 1908 corresponding to Art.37 of the Limitation Act of 1963. However, later on, in the judgment it is seen that the learned Subordinate Judge has also stateod

"The plea of waiver should be specifically alleged in the plaint, or at any rate, the same should spell out from the pleadings. It was argued for the appellant that the respondents are claiming an unjust benefit. That may be so. But that is not a ground to hold that the suit is not barred by limitation. Had the plaintiff pleaded that he had waived his right to get the future subscriptions in a lump or if he did not send the registered notice, he would have been entitled to get the amounts payable for the instalments that fell due within three years of the filing of the suit. But having exercised the option to claim the entire future subscriptions in a lump, the appellant will not be entitled to fall back on Exhibit P1 and claim the amounts in instalments."

Though the learned Munsiff began his discussion by indicating that Art.37 would not apply to the case, he ultimately appears to have concluded that the proper Article applicable to the present case is none other than Art.37. Art.37 reads as follows:

At this juncture it may be advantageous to consider the pleadings. In Para.4 it is stated that the default was committed on and from the 16th August 1964 when the 23rd instalment fell due and in Para.6 it is stated that cause of action arose in August 1964 when the default occurred and from 1131965 on which date the notice was issued. The cause of action, therefore, could arise only oh either of these two days. If it is considered that the cause of action arose on 16 81964, the claim is barred by limitation, in case it is Art.37 that applies, as clearly the suit filed on 22-3-1968. was much beyond three years from the date of default. It is also clear that if the limitation runs from the date of notice, namely 113 1965, the suit is just beyond three years from that date, and as such is barred under Art.113, if not under Art.37. So on these facts we have to find out whether Art.37 of the Limitation Act would apply to the case. From the wording of the Article it appears that where in a bond in the nature of Ext. P1 which provides for payment in instalments by the executant, and, in default of one or more instalments, also for his liability to pay the instalments in default with all the future instalments in lump at once, the per