Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiff-appellant to recover money due on a mortgage bond payable by instalments. The plaintiff alleged that the defendants had after repeated demands paid two small sums, and the suit was for the balance that remained unpaid. The defence in substance was that the suit was barred by limitation, that the terms of the mortgage bond had been subsequently modified by a verbal contract, and that the defendants having performed their part of that contract, the bond was satisfied.
2. The first Court found that the part payments alleged in the plaint were not proved, that all the instalments under the bond except the last two were in consequence barred by limitation, and that the subsequent oral contract set up was not established; and it accordingly decreed the suit in part.
3. On appeal the Lower Appellate Court has dismissed the whole suit on the ground that it is barred by limitation.
4. In second appeal it is contended that the Lower Appellate Court is wrong in law in dismissing the whole suit on the ground of limitation, when it ought to have affirmed the decree of the first Court.
5. The suit being one for the recovery of money due on a mortgage bond by the sale of the mortgaged property, the provision of the Limitation Act applicable to it is Article 132, Schedule II; See Ram Din v. Kalka Prasad I.L.R. 7 All. 502 Miller v. Runga Nath Moulick I.L.R. 12 Cal. 389 and Girwar Singh v. Thakur Narain Singh I.L.R. 14 Cal. 731. The period of limitation under that article is twelve years, and it runs from the time when the money becomes due; and the question is when did the money sued for become due. The mortgage bond stipulates that the money borrowed shall be paid by certain instalments, and that upon default in the payment of any one instalment the mortgagee may at his pleasure sue either for that instalment or for the whole of the money then remaining unpaid. And it is admitted on both sides that upon the facts found, the claim for all the instalments except the last two is barred upon any view of the case, but that the claim for the last two instalments would or would not be barred according as it is held that time runs from the date of the first default or from the due dates of those two instalments. The contention on behalf of the appellant is that the two installments became due within title meaning of article 132 on their respective due dates; while on the other side, it is urged that the money became due as soon as the first default 'was made. The learned Vakil for the appellant, in support of his contention, cites Shankar Prasad v. Jalpa Prasad I.L.R. 16 All. 371 and Hanmantram Sadhuram v. Bowles I.L.R. 8 Bom. 561 and for the respondents the cases of Juggut Mohinee Dossee v. Monohur Koonwar 25 W.R. 278 Nobodip Chunder Shaha v. Ramkrishna Roy Chowdhry 1. L. R. 14 Cal. 397 Bir Narain Panda v. Darpa Narain Prodhan I.L.R. 20 Cal. 74 Hon Mohun Roy v. Durga Charan Gooee I.L.R. 15 Cal. 502 Ram Pulpo Bhattacharji v. Ram Chunder Shome I.L.R. 14 Cal. 352 Hurri Pershad Chowdhry v. Nasib Singh I.L.R. 21 Cal. 542 and Ragho Govind Paranjpe v. Dip Chand I.L.R. 4 Bom. 96 are relied on.
6. The cases cited are all distinguishable from the present, though certain general principles, either expressly enunciated or impliedly relied on in some of them, clearly bear upon the question now before us.
7. The first case cited for the appellant, Shankar Prasad v. Jalpa Prasad I.L. R. 16 All. 371 is not one relating to the construction of article 132 of Schedule II of the Limitation Act. The question there was whether, where a decree for money is payable by instalments with a provision that upon default in the payment of any instalment the decree-holder may, if he wishes, execute the decree for the whole sum remaining unpaid, limitation runs in respect of each instalment from its due date, notwithstanding that the whole amount covered by the decree became realisable at the decree holder's option at an earlier date by reason of the judgment-debtor's default; and the learned Judges of the Allahabad High Court answered that question in the affirmative. The case evidently was one under clause (b) of article 179, Schedule II of the Limitation Act, and the effect of the decision is that the ' certain date ' referred to in that clause was the due date for each instalment, notwithstanding that it might have been claimed as realisable at an earlier date. The principle underlying the decision no doubt appears at first sight to lend some support to the appellant's contention that the money sued for became due gradually at the dates of the successive instalments, notwithstanding that the plaintiff had the option of claiming it as having become due at an earlier date; but we are unable to follow this decision, because it is in conflict with the decisions of our own Court in Bir Narain Panda v. Darpa Narain Prodhan I.L.R. 20 Cal. 74 and Hurri Pershad Chowdhry v. Nasib Singh I.L.R. 21 Cal. 542 cited for the respondents, and also because we find it difficult to understand how money, which, though made payable by instalments, becomes realisable at once upon default in the payment of any instalment, can be said not to have been directed to be paid on the date of such default so as to make limitation run from that date under clause (b) of article 179 merely because it wars optional with the creditor to enforce the condition for immediate payment, when there is nothing to show that the optional right had been waived. 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. This is what this Court held in Bir Narain Panda v. Darpa Narain Prodhan I.L.R. 20 Cal. 74 and not, as the judgment, in Shankar Prasad v. Jalpa Prasad puts it, ' that the decree-holder on the happening of a default was bound to execute the decree once and for all.
8. The second case cited for the appellant Hanmantram Sadhuram v. Bowles I.L.R. 8 Bom. 561 goes against him rather than in his favour. The learned Judge who decided that case accepted as correct the observation of Lord Denman, Chief Justice, in Hemp v. Garland (4 Q. B. 515) ' that if he (the plaintiff) chose to wait till all the instalments become due no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time the plaintiff had a right to maintain it,' and the only ground upon which he held that the suit was not barred was that the language of the bond showed that in case of default in payment of one instalment the whole amount should become due only if a demand for such amount was made, and the suit was brought within the time allowed by law from the date of the demand.
9. In the case of Juggut Mohinee Dossee v. Monohur Koonivar 25 W. R. 278 cited for the respondents, MITTER, J., observed that the principle indicated in article 75 of the second Schedule of Act IX of 1871 might be adopted in determining ' when the money sued for becomes due ' within the meaning of article 132; but the learned Judge himself added that it was not necessary to express any decided opinion upon the point.
10. The other cases cited by the learned Vakil for the respondents relate either to execution of decrees for moneys payable by instalments, or to suits on instalment bonds in which the provision for the payment of the whole upon default in the payment of an instalment is an unqualified one, and is not left to be enforced at the option of the creditor, and they do not, after what has been said above, require any detailed examination.
11. Confining our attention then to the question for determination in this case, namely, when did the money sued for become due within the meaning of article 132 of Schedule II of the Limitation Act, and bearing in mind that while there is no case directly in point, the balance of authority in this Court upon analogous questions relating to execution of decrees for money payable by instalments, preponderates in favour of the respondents' contentionl, we think we must hold that the decree passed by the Lower Appellate Court dismissing the whole suit is right. The money sued for became due according to the terms of the bond when the first default in the payment of an instalment was made, and it became due none the less because the right to enforce immediate payment was optional with the creditor. The right might have been waived if the creditor chose to do so; but he did not waive it in this case; and there is no question of waiver raised here.
12. It was argued for the appellant that when it was left to the option of the creditor to enforce the provision for immediate payment of the whole, the presumption should be that the right to enforce such payment was waived until the contrary was shown. The answer to this is that the provision being for the benefit of the creditor, the natural presumption is that the right created by it was not waived by him unless the contrary was proved. To use the words of Lord Denman in Hemp v. Garland 4 Q. B. 519 the defendant ' might well consider the action as accruing from the time the plaintiff' had a right to maintain it.' We may add that the rule laid down in Hemp v. Garland that limitation ran from the date of the first default, notwithstanding that it was optional with the creditor to enforce payment of the whole upon such default, has been followed by the Court of Appeal recently in the case of Reeves v. Butcher L. R. 1891 2 Q. B. 509.
13. For the foregoing reasons we are of opinion that the suit has been rightly dismissed by the Lower Appellate Court, and that this appeal should be dismissed with costs.