Harington and Brett, JJ.
1. In this case a Rule was granted calling upon the opposite party to show cause why the order of the Small Cause Court Judge of Serampore complained of should not be set aside, or such other order made as to this Court might seem fit. The order was an order dismissing the plaintiff's suit on the ground that it was barred by limitation. The plaintiff sued on a bond for money borrowed by the defendant. The condition of the bond was that the money should be repaid in certain instalments, and the material proviso which has to be considered in this case, is 'and on failure to pay any one of the said instalments, you,', that is, the plaintiff: 'shall be at liberty to realize the amount covered by all the instalments immediately with interest at the above rate, until realization.' Then question that arises on this proviso is does the Statute of Limitation run from the date of the first instalment in respect of which default is made, or is the plaintiff at liberty to sue for each instalment as it falls due under the bond, taking the date of its falling due as the starting point for limitation? In our opinion the question is concluded adversely to the petitioner by authority. He relies on the case of Chunder Komal Das v. Bisassuree (1883) 13 C.L.R. 243, which is an authority for the proposition that the decree-holder might realize the whole decree at once upon default being made in payment of any one instalment, of might waive his right to do so and seek to realize the instalments, as they became due. But this case has been dissented from expressly in the case of Hurri Pershad Chowdhry v. Nasib Singh (1894) I.L.R. 21 Calc. 542 and also in the case of Mon Mohun Roy v. Durga Churn Gooee (1888) I.L.R. 15 Calc. 502. In our opinion limitation under the Statute begins to run from the time when the plaintiff first has his right to sue, unless it is proved that he waived the right to demand the whole on default being made in the payment of -one of the installments and agreed, notwithstanding the default, to accept-subsequently the instalments payable under the bond. It is argued in support of the rule that his abstinence from suing amounts to a waiver of his right to sue for the whole. We do not agree with that contention, but we agree with the observation made by the learned Judges, who decided the case of Hurri Pershad Chowdhry v. Nasib Singh (1894) I.L.R. 21 Calc. 542, that mere abstinence from suing cannot amount to waiver, and that there cannot be any waiver so as to affect limitation save by payment and acceptance of an overdue instalment.
2. It has been argued that in the present case the bond gives liberty to the plaintiff either to sue for the whole or to sue for the separate instalments. That point has been disposed of by the same learned Judges in the observation nest following that to which we have referred. The Judges say that no distinction can be drawn between a case in which it is provided that, on non-payment of an instalment, the whole amount shall become due, and one in which it is provided that on non-payment of an instalment the whole amount may be sued for. They point out that there is no reason why the limitation should begin to run in the case in which the amount shall 'become due under the terms of the bond on the first default' and not in the case in which it may 'become due under the terms of the bond on the first default,' and it is clear that there can be no distinction because the real question is what is the date on which the plaintiff's right to bring his action arose. That being so we follow the decision in Hurri Perahad Chowdhry v. Nasib Singh (1894) I.L.R. 21 Calc. 542 which, we may say, is consistent with all the authorities under the English law on this point. We accordingly discharge the rule with costs.