1. This is an appeal by the plaintiff against the judgment and decree of Subordinate Judge, 3rd Court, Mymensingh, affirming the judgment and decree of the Munsif, 3rd Court, Mymensingh,. in a suit brought by the plaintiff for recovery of Rs. 1,442-8-0 alleged to be due on a simple instalment bond executed by defendant 1 in her favour on. 27th Pous 1324 B.S, for a consideration of Rs. 950. The plaintiff alleged receipt of Rs. 82 on different dates on account of interest, the last payment having been made on 9th Kartik 1328 B.S., and her case in the plaint was that these payments saved limitation.

2. Defence was that the suit was barred by limitation. The defendants did not. admit the payments as alleged by the plaintiff on the dates specified but he said that he had paid Rs. 110 in all, the last payment having been made in Bhadra of 1326 B.S.

3. Both the lower Courts found as a fact that no payment was made by the defendant after Bhadra 1326 and so they dismissed the suit as barred by limitation.

4. The instalment bond in question stipulated for payment of the money covered by it in six instalments falling due on the dates mentioned in the bond, the first instalment falling due on the last day of Aswin 1325 B.S. There was a further stipulation in the bond to the effect that in the event of default of payment of any one instalment, the creditors would be entitled to recover the entire amount of principal and interest due on the bond. The default was made in the payment of the first instalment. It has been urged on behalf of the appellant that the proviso in the bond having been inserted for the advantage of the creditor it was optional with the creditor to sue for the whole amount, i.e., she could sue for the whole, or if ehe chose might waive her right to sue and so the claim for the last three instalments, viz., Aswin of 1328, Aswin of 1329 and Aswin of 1330 is not barred by limitation. In the present case the plaintiff claimed the entire amount under the bond with interest from the date of its execution. This goes to show that she did not waive the benefit of the proviso. She stated in the plaint that her cause of action arose on the date the first instalment fell due, i.e , on the last day of Aswin 1325 B.S. I have already said that she wanted to save limitation by alleging payments of interest by defendants on certain specified dates. There has been no acceptance of payment subsequent to the first default nor a mere abstinence on the part of the creditor from seeking the benefit of the proviso, but on the contrary, there has been affirmative act done by her shoving that she did not waive the benefit of the proviso, but claimed the entire amount. The waiver of such condition may be effected in a variety of ways and may be inferred from various circumstances. It must, however, always depend upon some definite act or forbearance on the part of the plaintiff. Here the plaintiff distinctly pleaded payment of interest to save limitation. The fact of waiver would be inconsistent with such a plea and she could not be allowed to set it up when her plea of payment had been found to be false. I have already said that she stated in the plaint that her cause of action arose on the date of the first default, i.e., Aswin 1325. So I am of opinion that time began to run against the plaintiff from the date of the first default.

5. Shib Chand Nahar v. Hyder Molla [1836] 24 Cal. 281 was a case of a mortgage bond executed by defendant whereby a sum of money was made payable by four instalments, and the plaintiff was given the liberty in case of any default to sue either for the amount of that instalment or for the whole amount then due ; it was held that limitation ran from the date of the first default. In this case it has been observed that where there is an optional right given to enforce payment of money such right may be waived, but when it is not waived or where there is nothing to show that it has been waived, limitation would run from the date when the right accrues. This decision was followed in Jadab Chandra v. Bhairab Chandra [1904] 31 Cal. 297, and in (sic) Mohan Roy v. Kuir Narayan Das [1909] 36 Cal. 394, Abinash Chandra v. Bama Bewa [1909] 13 C.W.N. 1010 was a case where it was held that mere omission to sue was not such a waiver as was contemplated by Article 75, Schedule 1, Lim Act. Such a waiver was not limited to the case of a subsequent acceptance of an overdue instalment, but. might be effected in a variety of ways, might be inferred from various circumstances. It must, however, depend on some definite act or forbearance. In the case plaintiff brought the suit on 8th February 1909, alleging that the first two instalments had been duly paid and that the remaining fourteen instalments fell due in April 1903, on which date default was made. The defence was that the allegation of payment of the first two instalments was false, and that the suit having been brought after the expiry of 6 years from the first default, it was barred by limitation. It has been proved as a fact that the first two instalments were not paid. The learned Judges remarked:

hare they distinctly pleaded payment of the first two instalments. The fact of waiver would be absolutely inconsistent with such a plea, and they could not be allowed to set it up, when their plea of payment had been found to be false.

6. On the side of the appellant reference has been made to Mohan Lal v. Tika Ram [1419] 41 All. 104 There was a proviso in the instalment bond that if there was any default in payment of any of the instalments, then the creditor would have the power to claim the entire amount in a lump sum. The bond was executed on 23rd February 1909. The first instalment would be payable at the end of February 1910. Nothing was paid on account of the first two instalments. The plaintiff brought the suit on 7th June 1917 claiming to recover only the remaining three instalments with interest. It has been held in the case that the plaintiff may, if he so chooses, waive his right and sue for such instalments as remain due and are not barred by limitation. The next case referred to is Pancham v. Ansar Hushen A.I.R. 1926 P.C. 85. Where there was a mortgage of immovable property for the advance of a sum repayable in 12 years with interest capitalizing in case of nonpayment with a further proviso for the payment of Rs. 500 every year, any default which would give the mortgagee an immediate right to realize the whole debt, it was held by the Allahabad High Court that under a clause in the above form, a single default by itself operated eo instanti to make the money received by the mortgage "become due" and limitation began to run therefrom : Held (by the Judicial Committee):

That in the circumstances of the case, it was unnecessary to decide the point. The decision of the High Court raised a question of grave importance and it was desirable so soon as might be, the Board must finally pronounce whether the principle of those decisions was right, or, even, if it was, whether it had any application to provisos such as that in the suit.

Their Lordships of the Privy Council observed:

there has been in different High Courts of India a sharp conflict of judicial opinion.

7. The suit was brought by the appellants as mortgagees to recover a sum of Rs. 34,000 alleged to be due as principal and interest on a mortgage dated 21st February 1893. The principal sum received was Rs. 4,000 with interest at 10 per cent. and provision was made in the deed for repayment of principal and interest at the rate of Rs. 500 per year. There was a further proviso that in the event of default in the payment of Rs. 500 per annum, the mortgagee should be entitled without waiting for expiry of the stipulated period to institute proceedings to realize his security. The plaint was filed on 21st February 1917 and alleged that the cause of action accrued on 21st February 1905. On presentation it was rejected as being barred by limitation and was accordingly amended by a statement that the cause of action accrued on 21st February 1894 and other dates including 10th April 1906 when interest was paid. Their Lordships observe:

further the allegation now is that the suit which would otherwise have been out of time is exempted from limitation only by the payment of interest specified. That henceforth was the plaintiffs' case, and it would have succeeded if these payments had been proved. But the plaintiffs' attempt to prove them, as has been stated, entirely failed....Having made a finding of fact in the same sense the trial Judge by his judgment of 31st May 1919, dismissed the suit with costs. That was, their Lordships think, his proper course. No other issue was, or is, on the pleadings open to the plaintiffs and their conduct in this matter is not such as to entitle them to claim any more then strict treatment. On their chosen issue they fought: to that issue they directed evidence which was not believed: on it, they therefore failed. And by that failure they must abide.

8. In the present case, as I have already said, the plaintiff recited in the plaint that the cause of action arose on the date of first default, i.e., Aswin 1325 and that the limitation was saved by payments of interest on subsequent dates. Plaintiff failed to prove those payments. I don't think the plaintiff can now be allowed to set up her plea of waiver. The ruling reported in Maung Sin v. Ma Tok does not seem to have considred the point in question. It depended upon the construction of a decree. There does not seem to have been any proviso in the decree that in default of payment of any one instalment the entire amount would be recoverable at once. The terms of a decree passed in 1916 were that certain lands were to be left in possession of the appellant who was to pay the respondent Rs. 2,000 annually and in default of payment the said property would be made over to the latter. In 1924, the respondent claimed execution of the decree of the instalments of 1923 and 1924 and as the appellant failed to pay, she prayed for the delivery of the lands to her. It was contended that the claims were time barred inasmuch as no payments had been made since the decree and the right to the possession of the land had never been asserted: Held, that the proper construction of the decree was that each instalment as it became due, gave rise to a fresh claim to the money or to the lands in the alternative and as such no question of limitation arose by reason of the provisions of Clause 7, Article 182, Lim. Act.

9. After consideration of all the circumstances in the case we are of opinion that the suit is barred by limitation.

10. So the appeal fails and is dismissed with costs Mukerji, J.

11. I agree and desire to add a few words.

12. The bond in the present suit is a simple instalment bond providing for the payment of Rs. 950 in six specified instalments and stating that in default of payment of any of the instalments interest would be payable thereon at the rate of one per cent. per mensem from the date of the bond. There is another stipulation in the bond which runs in these words:

Be it noted that in default to pay any one instalment, you will be entitled to recover from me the entire amount of principal and interest at the same time by a suit.

13. In the absence of a stipulation of this character the cause of action in respect of each instalment in default would arise on the date of the default. That is Article 74. Lim. Act, Sch 1. If the stipulation in question be read as meaning that if default be made in the payment of one or more instalments, the whole amount shall be due. Article 75, Lim. Act, Schedule 1 will apply and limitation will run from the default unless there has been waiver. The stipulation in question may, favourably to the creditor, be regarded as giving him an option to treat the whole amount as due on the date of the first default. A long series of decisions of this Court have laid it down that where there is an optional right given to enforce payment of money, such right may be waived, but when it is not waived, or when there is nothing to show that it has been waived, limitation would run from the date when the right accrues. These decisions have engrafted into the Act the principle of Hemp v. Garland [1848] 4 Q.B. 519, in which Lord Denman, C.J. observed that:

if the plaintiff chose to wait until all the instalments became due no doubt he might do so, but that which was optional upon plaintiff's part would not affect the right of the defendant, who might well consider the action as accruing from the time when the plaintiff had the right to maintain it.

14. The principle of Hemp v. Garland [1848] 4 Q.B. 519 was adopted in this country so far back as during the days of Act 14 of 1859: see the Full Bench case of Hurronath Roy v. Maheroollah Moolla [1867] 7 W.R. 12, while. act 14 of 1859 was in force there was no distinct statutory provision applicable to an instalment bond with a stipulation that on default of payment of any one instalment, the whole debt shall be due. The reported decisions during that period ranged themselves under two heads: viz., those which threw out the claim of the obligee altogether on the ground of limitation, and those which left him to avail himself of the benefit of the doctrine of waiver. The legislature in enacting Article 75 in Schedule 2. Lim. Acts 9 of 1871 and 15 of 1877 effected a sort of a compromise.

15. My learned brother has discussed some of the cases under the Limitation Act3 of 1871-1908 and I do not propose to deal with them over again. I shall point out only a few of them which may be looked upon as land marks indicating certain definite stages in the course of the decisions.

16. In the case of Hurronath Roy v. Makeroolla Moolla [1867] 7 W.R. 12 passed when Act 14 of 1859 was in force a Full Bench of this Court acting on the principle of Hemp v. Garland [1848] 4 Q.B. 519, which though it was not expressly mentioned in the judgment of this Court was cited in the order of reference, held that limitation ran from the time when default was made in the payment of the first instalment in consequence of which the whole amount became due.

17. In the cases of Nilmadhab Chakravarti v. Ramsodoy Ghose [1882] 9 Cal. 857 and Chunder Kamal Das v. Bisassurree Dassia [1888] 15 Cal. 502 the question of limitation arose in connexion with instalment decrees which gave liberty to the decree-holder to realize the whole decree in default of payment of any one of the instalments, and it was held that the option merely enlarges, the power of the decree-holder to proceed, should he so desire to realise the whole amount due on the occurrence of default in payment of one of the instalments and that by his not having exercised the election he had simply waived his right to execute the whole decree then and there, but that he was entitled to realize the instalments still due and not barred by limitation.

18. The view propounded in the last two cases were considered in the case of Mon Mohan Roy v. Durga Charan Gooee [1888] 15 Cal. 502 as being opposed to and irreconcilable with the current of decisions on the subject. In the case, which related to an instalment decree, Wilson and O'Kinealy, JJ., thus recapitulated the law on the subject:

First, it is a general rule that whore a decree or order makes a sum of money payable by instalments on certain date, and provides that on default of payment of one of the instalments, the whole of the money shall then become due aud payable and be recoverable under execution then under Article 179, Lim. Act, 15 of 1877 and under corresponding articles in earlier Acts, limitation commences to run when the first default is made.... There has, however, been engrafted upon that general rule an exception in certain cases. That exception I understand to be this that if the right to enforce payment of the whole sum due upon default being made in the payment of an instalment has been waived, by subsequent payment of the overdue instalment on the one hand and receipt on the other, then the penalty having been waived, the parties are remitted to the same position as they would have been if no default had occurred.

19. A current of decisions followed on the same line. Most of them have been discussed in detail in a comparatively recent judgment of this Court in the case of Girindra Mohan Roy v. Khir Narayan Das [1909] 36 Cal. 394 and no useful purpose would be served by referring to them individually. One case, however, needs special mention, namely, the case of Mokesh Chandra Banerji v Prosanna Lal [1903] 31 Cal. 83 in which an instalment bond gave the creditor the right to sue for the whole amount due on default of payment of a single instalment and upon a consideration of the more important previous decisions of all the Courts it was held that there was no waiver of that right by acceptance of part of an overdue instalment or by receipt of interest.

20. The only other case that requires mention is that of Surendra Nath v. Reshee Case Law in which it was said that most of the decisions of the point relate to cases coming under Article 75, Lim. Act, which provides for waiver of default in payment of instalments, or to cases relating to instalment decrees to which the principle had been applied, and then, after referring to the cases of Juggut Mohini v. Monohar Koonwar [1876] 25 W.R. 278 and Sitab Chand Nahar v. Hyder Molla [1836] 24 Cal. 281 in which the point indirectly arose, it was said:

Article 132, Lim. Act, does not provide for cases of waiver; and there is no case directly deciding that the principle of waiver would apply to mortgage bonds payable by instalments....We think that in the absence of any provision in Article 132 with respect to cases of waiver and of any direct authority on the point, we may apply the principle indicated in Article 75 in determining when the money sued for becomes due within the meaning of Article 132.

21. Some doubt has been cast upon the correctness of this trend of decisions by the decision of the Judicial Committee in the case of Pancham v. Ansar Husain A.I.R. 1926 P.C. 85. My learned brother has elaborately dealt with this case in his judgment and I do not propose to do so over again. All I desire to say is that their Lordships' words have to be taken in the light of the facts of the case before them, and should be read in conjunction with the reservation they expressly made refraining to express any opinion on the question. It is, in my opinion, too early at the present moment to say that their Lordships have dsfinitely pronounced the view of this Court as unsound. It should be noted that in the two cases that their Lordships dealt with specifically in their judgment the bonds were of a very different character The bond in the case of Shib Dayal v. Meherban A.I.R. 1923 All. 1 as appears from the report of the case, provided that:

the money with interest at the rate of eight annas par cent. per month was repayable within a period of 12 years and would carry interest from year to year, that in case of interest not being paid from year to year the creditor would have the option to add the interest due to the principal and charge interest thereon at that rate and would be able to recover the amount within the stipulated period, and that in case of non-payment the creditor shall have the power to recover the money, principal, interest and compound interest from the debtor, the mortgaged property or from his other moveable or immovable property. It further stipulated that if the debtor was not able to pay the money within the stipulated period, and with the consent of the creditor the money remained unpaid, the interest and compound interet would continue to run at the stipulated rate until the date at realization.

22. The bond in the case of Gyadin v. Jhumman Lal [1915] 37 All. 400 coutained a stipulation that:

If the mortgagee, in order to get interest, does not bring a suit in default of payment of any instalment, and the debtor be unable to pay, the interest should continue up to the stipulated period of ten years and also up to the date of realization.

23. On the question of waiver I entirely agree with my learned brother that mere abstinence to sue on the part of the plaintiff and the mere fact that she slept over her rights would not constitute waiver, and further that it was never her case that she had waived the stipulation, but on the other hand she relied upon it and falsely tried to get over the bar of limitation.