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 1883was improperly made on the ground that more than six months had elapsed afterthe date of the original decree. I do not think this is sustainable, inasmuch asthe order was made with the consent and on the application of both parties, andit is not open to either to say now that it was an improper order. But thelower Court has decided, secondly, that the application is out of time on theground that in July 1882, when the first default was made, the whole of themoney secured by the decree became payable, and might have been recovered byexecution, and that the present application was barred by the provisions ofArticle 179, Sub-Section 6 of the second schedule of the Limitation Act. Ithink it unnecessary, and it would be unprofitable, to enquire how we mightdecide a question of this kind if it were a new question, for it is a questionwhich has arisen many times in the course of a number of years. And in a matterof this kind it is all important that the current of decisions should beuniform and consistent, and that it should be strictly adhered to.

2. I understand the authorities thus: First, it is a generalrule that where a decree or order makes a sum of money payable by installmentson certain dates, and provides that, on default in payment of one of theinstallments, the whole of the money shall then become due and payable, and berecoverable in execution, then Under article 178 of the Limitation Act alreadymentioned, as under corresponding articles in earlier Acts, limitationcommences to run when the first default is made. The principle was laid down inthe 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 abond payable by instalments, and what was laid down was this: "Under thesecircumstances we are of opinion that limitation did run from the time whendefault was made in the payment of the first instalment, in consequence ofwhich the whole amount became due." Under the successive Limitation Actsthe 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 fromthe date of the first default. The same question came before the Allahabad HighCourt in the case of Shib Dat v. Kalka Prasad 2 A. 443and the same conclusionwas arrived at. The same view was taken by a Bench of this Court in the matterof Cheni Bash Shaha v. Kadum Mundul 5 C. 97and again in Asmutullah Dalal v.Kally Churn Mitter 7 C. 56.

3. There has, however, been engrafted upon that general rulean exception in certain cases. That exception I understand to be this, that ifthe right to enforce payment of the whole sum due upon default being made inthe payment of an installment has been waived, by subsequent payment of theoverdue installment on the one hand and receipt on the other, then, the penaltyhaving been waived, the parties are remitted to the same position as they wouldhave been in if no default had occurred. It is only necessary to refer to twocases 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 itwas 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 penaltybeing thus waived, and a fresh period of limitation was held to run. On theother hand in the case already referred to Gheni Bash Shaha v. Kadum Mundul 5C. 97 the distinction is expressly taken between a waiver by payment andreceipt of an overdue instalment, and a mere omission to sue or take steps onthe default; and it was held that, although there may be a wavier by the paymentand receipt of the overdue installment, there could be none by the mere fact ofdoing 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 acase of Chunder Komul Das v. Bisassurree Dassia 13 C.L.B. 243. There it doesappear to me to have been held that, although in a case similar to the presentdefaults had occurred, and no subsequent payment had been made in respect ofthe kits in default, it was still open to the creditor to say that the revisionmaking the whole sum payable on default of payment of one installment was oneonly for his protection, and that he might afterwards waive it and put it outof the way as regards the period of limitation. That seems to meirreconcilable, if I correctly understand it, with the current of decisions onthe subject, and especially inconsistent with the decision in Gheni Bash Shahav. Kadam Mundul 5 C. 97I am disposed to think that there must have been somepeculiarity in the case beyond what appears in the report, because the learnedJudges cite as an authority in support of their view the case of AsmutullahDalal v. Kally Churn Mitter 7 C. 56which appears to me, as I understand it, tobe an authority for the contrary view. The result is that in my opinion thereis an overwhelming preponderance of authority in favour of the proposition thatlimitation runs from the date of the first default in the payment of aninstallment, and that the present application for execution is barred bylimitation. On that ground the decision of the lower Court can be supported,and this appeal must be dismissed with costs.

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Mon Mohun Roy vs. Durga Churn Gooee and Ors. (09.02.1888 -CALHC)