SURENDRA NATH Vs. RAJA RESHEE CASE-LAW

JUDGEMENT

(1.) This appeal arises out of a suit upon an instalment mortgage-bond, dated the 23 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.