Hansraj Godhaji Marwadi vs Bapu Krishnaswami Pile

Norman Macleod, Kt., C.J.—On February 29, 1916, an award decree was made whereby the defendants were bound to pay to the plaintiffs Rs. 6,562-8-0 with interest thereon by instalments of Rs. 50 every month. It was provided that in case of default in payment of any six instalments, the whole amount should become due by sale of the mortgaged property specified in the decree. On September 27, 1919, the decree-holder put in a Darkhast, and it was objected that his Darkhast was time-barred because by August 1916 there had been a failure to pay six consecutive instalments. Therefore at that date the whole amount of the decree became due. Prima facie the Darkhast being given three years after the date on which the whole amount was recoverable would be time-barred.

It has been suggested that by reason of a payment made on April 9, 1917, limitation is saved by virtue of Section 20 of the Indian Limitation Act. But it is clear that Section 20 could have no application, as the payment in question did not appear in the handwriting of the person making the same.

It was further argued that in the circumstances of this case, the Court should infer a waiver. The only facts pointed out are that, on April 9, 1917, a payment of Rs. 5500 was made, and that, on January 19, 1918, that is to say, eight months afterwards, a payment of Rs. 400 was made, i. e., eight times the instalments due under the decree. But it is impossible from these circumstances alone to infer that the parties came to an arrangement that there should be an agreement for a new period of limitation.

The appellant relies upon Amrit Khanderao Kango Vs. Govind Ramchandba Chitnis, in which case it was held that, upon the facts there established, a waiver might be inferred. But a perusal of the judgment in that case shows at once that there is no analogy between the facts there found and the facts in the present case. There execution proceedings were taken out from time to time without any objection A being taken; and there were other circumstances also from which the Court inferred that as a matter of fact there had been a waiver. There is nothing of the kind here, and we are unable to hold that any waiver can be inferred. It follows that the order is correct and that the appeal must be dismissed with costs.