The main legal point established in the judgment is that the payment and acceptance of overdue instalments constitute a waiver, and that the penalty referred to in the decisions does not refer to penalty by way of interest, but the penalty by way of suing for all the instalments.

JUDGMENT

1. This appeal arises out of a suit upon an instalment mortgage-bond, dated the 23rd Bysah 1308.

2. The bond provided for payment of the debt in twelve instalments, the first falling due in POUS 1308 and the others in the month of Pous of each of the next 11 years ending with 1319. It was further provided that on default in payment of any one instalment the creditor would be entitled to recover the entire amount due under the bond with interest thereon at 2 per cent, per mensem, without waiting for the future instalments falling due. The plaintiff alleged that the first instalment was duly paid and the instalments for 1309 to 1311 together with interest thereon were paid and accepted although the payments were made out of time and the suit was brought for the subsequent instalments.

3. The main defence was that the suit was barred by limitation. The Court of first instance disbelieved the case set up by the defence but also disbelieved the case of the plaintiff as regards payments made by the defendants, and, holding that there was no waiver, came to the conclusion that the suit was barred by limitation. On appeal the learned Subordinate Judge held that the plaintiff's case was proved and that there was waiver and accordingly gave the plaintiff a decree. The defendants have appealed to this Court.

4. The question for consideration is whether the suit is barred by limitation. The Article applicable to the suit is Article 132 which provides that for a suit to enforce payment of money charged upon Immovable property the period of limitation is 12 years from the time when the money sued for becomes due.

5. The question, therefore, is when did the money become due in the present case. A number of decisions has been cited before us mostly in connection with cases coming under Article 75 of the Limitation Act, or relating to instalment decrees.

6. It is a general rule that, where money is payable by instalments with a provision, that the whole of the money will become due on default of payment of one of the instalments, the money becomes due when default is made in any of the instalments. See Hurronath Ray v. Maheroola Moolah 7 W. R. 21 (F.B.) and Hemp v. Garland (1848) 4 Q.B. 519 : 3 G. and. D. 402 : 12 L.J.Q.B. 134 : 7 Jur. 302 : 62 R.R. 423 : 114 E.R. 994. But as pointed out by Wilson and O'Kinealy, JJ, in Mon Mohan Boy v. Durga Charn Gooee 15 C. 502 : 7 Ind. Dec. (N.S.) 919 an exception has been engrafted upon the general rule in certain oases, viz, that if the right to enforce payment of the whole sum due upon default being made in 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 in, if no default had occurred. In the case of Mohesh Chandra Banerjee v. Prosanna Lal Singh 31 C. 83 : 8 C.W.N. 66, Rampini and Pargiter, JJ., appear to have taken a different view relying upon certain decisions of the Bombay High Court. But in that case no instalment was paid in full, and the learned Judges referring to the decisions of this Court pointed out that part-payment and acceptance of part of an overdue instalment has never been held even by this Court to amount to a waiver.

7. A distinction, however, has been 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 although there may be a waiver by the payment and receipt of the overdue instalment, there could be none by the mere fact of doing nothing. It was held accordingly in Girendra Mohan Roy v. Bocha, Das 1 Ind. Cas. 49 : 36 C. 394 : 13 C.W.N. 1004 : 9 C.L.J. 226 (where the cases on the point are collected) that mere abstinence on the part of the plaintiff from bringing a suit for recovery of the whole amount due on the failure of payment of the instalments (as agreed upon in that case) did not amount to waiver. In the pres