T. C. SHRIVASTAVA, J.

( 1 ) THIS petition for revision has been filed by the decree-holder whose application for execution of a decree against the non-applicants has been held barred by time.

( 2 ) ON 27-10-1951 the decree in question was passed in favour of the applicant against the non-applicants for Rs. 500/- payable in five instalments of Rs. 100/each. The first instalment fell due on 1-2-1952 and the subsequent instalments fell due every three months thereafter. It was ordered in the decree that after any instalment had been defaulted and a month had passed after the default, the whole amount would become payable. ,d eq'r erkyck okftcqy cnk gks The judgment-debtors paid nothing and the decree-holder filed the present execution on 14-5-1955. She has claimed recovery of the last four instalments with interest stating that the first instalment which fell due on 1-2-1952 had become time-barred.

( 3 ) ON behalf of the judgment-debtors it was stated that as the first instalment was defaulted, the whole amount became due on 1-3-1952 and as the -decree-holder did not file the execution petition with-in three years from that date, the present petition was barred by time. This contention was accepted by the executing Court. The decree-holder has therefore come up in revision.

( 4 ) ON behalf of the decree-holder, reliance was placed on the decision in Sheo Lal v. Devi Das, AIR 1952 All 900 (FB ). In that case a preliminary instalment decree was passed in a mortgage suit with an exigibility clause. The question arose in the context of an application for final decree. It was held in that case that the default clause is for the benefit of die decree-holder and he has always the option to waive it. Referring to the decision in Lasa Din v. Mt. Gulab Kunwar, 1932 All LJ 913: (AIR 1932 PC 207), it was observed :

"adopting the observations of their Lordships to the case in hand it may be said that the condition being exclusively for the benefit of the decree-holder, it purports to give him an option either to enforce it at once or not to endorse it and to recover the instalments as stipulated. If on the default of the judgment-debtor by the breach of the terms of the decree providing for payment of instalments the right to apply for the final decree accrues once and for all, it is clear that the intention of the parties is defeated and what was intended to be for the benefit of the decree-holder is turned to his disadvantage and leaves no option to him. "

It has been further laid down in that decision that the non-exercise of the option on the previous default is enough to show that the default was condoned or waived. In conclusion it was stated that whatever the language of the decree, the default clause is to be interpreted liberally and for the benefit of the decree-holder and an option in his favour must be inferred unless it was excluded by express words.

( 5 ) THE non-applicants have cited Vishwanath v. Sadashiva, AIR 1932 Nag 1 (FBX to support then contention that the execution petition was barred by time. This case arose in the context of an instalment bond. It was held that on default by the debtor, the whole sum becomes due within the meaning of Article 75 of the Indian limitation Act and when a suit is barred by that article, the creditor cannot sue for instalments which under the primary terms would have fallen due after the default. This case was referred to in Raghunathdas v. Warlu Bapu, AIR 1948 Nag 225, wherein it was held that once he exigibility clause comes into operation, the primary terms about repayment are superseded and the creditor cannot sue for instalments. It was) also laid down that the clause being for the benefit of the creditor he could waive it without the consent of the debtor, but he must specifically plead and prove such waiver. The third proposition which was laid down in this decision is, that a mere inaction on the part of the creditor such as abstinence to sue does not amount to waiver.

( 6 ) SHRI Sega

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