Limitation under instalment bond default clauses runs from first default unless waiver is clearly shown; part payment alone is insufficient.

Article 75 of the Limitation Act applies to instalment bonds with a default clause, so limitation ordinarily runs from the first default when the whole debt becomes due. Mere inaction by the creditor does not amount to waiver; waiver requires an overt act inconsistent with the continuance of the right. Acceptance of a part payment of an overdue instalment, by itself, does not waive the default or shift the starting point of limitation. On the stated facts, the earlier default was not waived and the suit was barred by limitation.

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Issues: Whether a suit on a registered instalment bond containing a default clause was barred by limitation under Article 75 of the Limitation Act, and whether acceptance of a part payment amounted to waiver of the default so as to shift the starting point of limitation.

Analysis: Article 75 governs instalment bonds which provide that on default the whole amount becomes due, and the period of limitation ordinarily begins from the first default. Mere inaction by the creditor or failure to sue does not amount to waiver; waiver requires some overt act inconsistent with the continuance of the right. Acceptance of a portion of an overdue instalment, without more, does not constitute waiver of the default. Where the plaintiff's own case proceeds on the footing that no default occurred, he cannot later rely on waiver in contradiction of that pleading. On the facts, the earlier default had not been waived, and the later part payment of Rs. 25 did not displace the running of limitation.

Conclusion: The suit was barred by limitation. The appeal was therefore allowed and the plaintiff's suit was dismissed with costs.

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