JUDGMENT
Das, J.
1. This second appeal and the application in revision have been heard together and will be governed by this judgment.
2. The short facts are these. The plaintiff,
who is the appellant in the second appeal and petitioner in the application in revision brought a suit for recovery of money on the basis of an instalment bond. The instalment
bond, with which we are at present concerned, was executed on the 21st of June, 1943. The instalment bond was executed for the repay-ment of a previous loan of Rs. 700/-. The debtor stipulated in the bond that he would pay the loan in six-monthly instalments of Rs. 50/- on account of principal and Rs. 4/- on account of interest. The instalments were to be paid in the months of December and June, and the first instalment was to be paid in December 1943. There was a clause in the instalment bond to the effect that, in case of default of two consecutive instalments, the whole
amount would become due and recoverable by suit. The admitted position is that two payments only were made by the debtor, one of Rs. 50/- on the 9th May 1944, and the other of Rs. 55/- on the 3rd August 1945. The first payment of Rs. 50/- made on the 9th of May 1944, was appropriated towards the first instalment due in December 1943. The second payment made on the 3rd of August 1945, was appropriated towards the second instalment due in June 1944. The suit was brought on the
1st of July 1948, and the claim was for the instalments beginning from June 1945 till June 1948. The question that arose for consideration in the courts below was whether the claim was barred by time. The courts below concurrently held that the claim was barred by time.
3. So far as the second appeal is concerned, it is conceded by learned Counsel for the appellant that no second appeal lies by reason of the provisions of Section 102, Code of Civil Proce-
dure. The second appeal must, therefore, be dismissed on the preliminary ground that it is incompetent.
4. As to the civil revision, the contention of learned Counsel for the petitioner is that the courts below took an erroneous view of law on the question of limitation. It is contended that when the petitioner accepted the payment of Rs. 55/- on the 3rd August 1945, he waived his right to bring a suit on the defaults made anterior to that date and in that view of the matter the suit was within time. It is not in dispute that Article 75 of the Limitation Act is the proper article to apply. It seems to me that the contention urged on behalf of the petitioner cannot be accepted on two grounds. The payment which was made on the 3rd of August 1945, was an overdue payment of the second instalment due in June 1944. If, therefore, there was a waiver, the waiver was in respect of the default with regard to the second instalment. It cannot be said that the waiver was with regard to the subsequent defaults made in December 1944 and June 1945, The petitioner had the right to bring a suit straightaway on the 1st July 1945, on the ground of the two consecutive defaults made in December 1944 and June 1945. Therefore, the period of limitation started to run from the 1st of July 1945, before which date two consecutive defaults had taken place which had not been waived by the petitioner. The suit was brought on the 1st of July 1948, one day after the period of limitation.
5. The point urged on behalf of the petitioner is, in my opinion, concluded by a Full Bench decision of this court in ‘Gokhul Man-ton v. Sheo Prasad Lal’, 18 Pat. 459 (F. B.). Manohar Lall, J. said in his judgment as follows : “I am inclined to agree with the view that where the promisee has accepted an overdue instalment it must be held that he has waived his rights which accrued to him on that default and that the starting point of limitation would be from the next default, if not waived.” Before the payment on the 3rd August 1945, there were three defaults of June
1944, December 1944 and June 1945. The default of June 1944 was condoned or waived by accepting a payment on the 3rd of August
1945. There was, however, no waiver or condonation of the defaults made in December 1944 and June 1945. Therefore, the starting point of limitation was after those two consecutive defaults took place; in other words, from. the 1st July 1945. In my opinion, the courts below took a correct view of the question of limitation in this case.
6. Even if it be assumed that the courts below were wrong in their view as to whether the claim was barred, it is still doubtful whether Section 115, Code of Civil Procedure, will be attracted to an erroneous decision on a question of limitation. It is however unnecessary to go into this second question at any length, because my view is that the question of limitation was correctly decided by the Courts below.
7. The result, therefore, is that both the ap-
peal and the application in revision fail and
are dismissed with costs. There will be one
consolidated hearing fee of the appeal as also
the application in revision.
Revision dismissed.