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Civil revision against dismissal of suit based on an instalment bond with an exigibility clause. Dispute over waiver of defaulted instalments and operation of the exigibility clause. Application of Article 75 of the Limitation Act. Requirement of pleading and proving waiver by the creditor. Appropriation of payments towards specific instalments. Dismissal of the suit by the lower Court without trial. Analysis: The judgment involves a civil revision concerning the dismissal of a suit based on an instalment bond with an exigibility clause. The plaintiff claimed default on the 5th and subsequent instalments due to the debtor's payments not aligning with the due dates. The lower Court dismissed the suit on the grounds of being barred by limitation due to lack of a clear plea of waiver. The judgment emphasizes the necessity for the creditor to plead and prove waiver when the exigibility clause operates, as per Article 75 of the Limitation Act. The judgment delves into the concept of waiver in such cases, highlighting that mere forbearance to sue does not amount to waiver. It clarifies that the creditor must take overt acts to communicate waiver to the debtor. The creditor accepting payment specifically for a defaulted instalment constitutes waiver of that default. The judgment stresses that waiver is a mixed question of law and fact, requiring proper pleading and proof. Moreover, the judgment discusses the appropriation of payments towards specific instalments, emphasizing that such appropriation can lead to the installment being treated as satisfied. The plaintiff's suit was dismissed without a trial, prompting the High Court to set aside the decision and remand the case for a fresh trial to allow for proper pleading and evidence. In conclusion, the judgment underscores the importance of pleading and proving waiver in cases involving instalment bonds with exigibility clauses. It highlights the need for clarity in pleading, proper appropriation of payments, and the requirement for a fresh trial to ensure substantial justice is served.
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