JUDGMENT
1. Two points have been decided in the lower Court: first, it has been held that the order for payment by installments made in May 1883 was improperly made on the ground that more than six months had elapsed after the date of the original decree. I do not think this is sustainable, inasmuch as the order was made with the consent and on the application of both parties, and it is not open to either to say now that it was an improper order. But the lower Court has decided, secondly, that the application is out of time on the ground that in July 1882, when the first default was made, the whole of the money secured by the decree became payable, and might have been recovered by execution, and that the present application was barred by the provisions of Article 179, Sub-Section 6 of the second schedule of the Limitation Act. I think it unnecessary, and it would be unprofitable, to enquire how we might decide a question of this kind if it were a new question, for it is a question which has arisen many times in the course of a number of years. And in a matter of this kind it is all important that the current of decisions should be uniform and consistent, and that it should be strictly adhered to.
2. I understand the authorities thus: First, it is a general rule that where a decree or order makes a sum of money payable by installments on certain dates, and provides that, on default in payment of one of the installments, the whole of the money shall then become due and payable, and be recoverable in execution, then Under article 178 of the Limitation Act already mentioned, as under corresponding articles in earlier Acts, limitation commences to run when the first default is made. The principle was laid down in the case of Hurronath Roy v. Maheroollah Mollah B.L.R. Sup. Vol. 618 : 7 W.R. 21 by a Full Bench. That was a case, not of execution, but of a suit upon a bond payable by instalments, and what was laid down was this: “Under these circumstances we are of opinion that limitation did run from the time when default was made in the payment of the first instalment, in consequence of which the whole amount became due.” Under the successive Limitation Acts the same question has arisen very often. In the case of Dulsook Rattan Chand v. Chugon Narun 2 B. 356 the question was considered with reference to execution, and Westropp, C.J., and Melville, J., held that limitation began to run from the date of the first default. The same question came before the Allahabad High Court in the case of Shib Dat v. Kalka Prasad 2 A. 443, and the same conclusion was arrived at. The same view was taken by a Bench of this Court in the matter of Cheni Bash Shaha v. Kadum Mundul 5 C. 97, and again in Asmutullah Dalal v. Kally Churn Mitter 7 C. 56.
3. 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 installment has been waived, by subsequent payment of the overdue installment 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 in if no default had occurred. It is only necessary to refer to two cases upon this point; one is Nil Madhub Chuckerbutty v. Ram Sodoy Ghose 9 C. 857. There the overdue instalments up to a certain date has been paid, and it was held that that being so, limitation would only run from the latter period, the first default having been waived. The same view was taken by Petheram, C. J., and Cunningham, J., in Bam Culpo Bhuttacharji v. Ram Chunder Shome 14 C. 352. There again the prior instalments were paid and received, the penalty being thus waived, and a fresh period of limitation was held to run. On the other hand in the case already referred to of Gheni Bash Shaha v. Kadum Mundul 5 C. 97 the distinction is expressly taken between a waiver by payment and receipt of an overdue instalment, and a mere omission to sue or take steps on the default; and it was held that, although there may be a wavier by the payment and receipt of the overdue installment, there could be none by the mere fact of doing nothing.
4. These authorities are quite consistent with one another. The only case which seems to me to conflict in any way with these cases is a case of Chunder Komul Das v. Bisassurree Dassia 13 C.L.B. 243. There it does appear to me to have been held that, although in a case similar to the present defaults had occurred, and no subsequent payment had been made in respect of the kits in default, it was still open to the creditor to say that the revision making the whole sum payable on default of payment of one installment was one only for his protection, and that he might afterwards waive it and put it out of the way as regards the period of limitation. That seems to me irreconcilable, if I correctly understand it, with the current of decisions on the subject, and especially inconsistent with the decision in Gheni Bash Shaha v. Kadam Mundul 5 C. 97. I am disposed to think that there must have been some peculiarity in the case beyond what appears in the report, because the learned Judges cite as an authority in support of their view the case of Asmutullah Dalal v. Kally Churn Mitter 7 C. 56, which appears to me, as I understand it, to be an authority for the contrary view. The result is that in my opinion there is an overwhelming preponderance of authority in favour of the proposition that limitation runs from the date of the first default in the payment of an installment, and that the present application for execution is barred by limitation. On that ground the decision of the lower Court can be supported, and this appeal must be dismissed with costs.
