Maclean, C.J:— This is a suit instituted in the Small Cause Court of Serampore for the recovery of certain moneys due upon an instalment bond. The bond was dated the 8th of October 1896, and it provided for the payment of a debt of Rs. 100 by certain instalments spread over several years. The bond also contained the following proviso: “If we make default in the payment of one kist you shall be able to realize the entire amount due under the bond with interest at once according to law.” That proviso was one inserted for the advantage of the creditor, and it was open to him, if default were made, to sue at once for the whole amount, or if he so elected to waive the benefit of the proviso, which was thus conferred upon him. Default was made in October 1897, and the present suit was brought some time in 1906. The learned Judge of the Small Cause Court has dismissed the whole suit on the ground that as regards the whole amount, the statute of limitation began to run from the date of the first default, namely, October 1897. The suit, it should be observed, is brought, not to recover any instalment due before October 1897, but only for the instalments-for six years before suit.
The contention of the present Petitioner who has obtained the rule is that the Court of Small Causes was wrong in entirely dismissing the suit, and that, at any rate, the Plaintiff was entitled to the instalments for six years before the date of suit. This would amount to a sum of about Rs. 60 with interest. The question, therefore, is whether the suit is barred altogether or whether the Plaintiff, waiving as he has done the benefit of the proviso to which I have referred, is not entitled to the instalments which have accured due within the limit of six years from the date of suit. In my opinion he is entitled to recover that amount. Without going through the cases in detail, the cases of Chander Komal Das v. Bissessuree Dassee(1), Nobocoomar Mookhopadhya v. Siru Mullick(2), Ganesh Krishn v. Madhavrav Ravji(3) and Nilmadhub Chuckerbutty v. Ramsodoy Ghose(4) support that view. Speaking for myself if the matter had been res integra, I should have felt some doubt whether the case did not fall within Art. 75 of the Second Schedule of the Limitation Act, rather than within Art. 116. To my mind there is force in the reasoning of Sir Richard Garth in the case of Nobocoomar Mookhopadhya v. Siru Mallick. But in face of the decisions which have extended over 25 years I feel I cannot properly now pursue the point.
The result is that this rule must be made absolute and judgment will be entered on behalf of the Plaintiff for arrears of the instalments accruing due for six years preceding the date of the suit with proportionate interest, and the costs of the suit including the costs of the rule which we assess at three gold mohurs.
Caspersz, J.— I agree.
S.C.S
Rule made absolute.