SARJU MISRA Vs. SHAIKH GHULAM HUSAIN

JUDGEMENT

(1.) The suit which has given rise to this appeal arose under the following circumstances. On the 1st of March 1900 the plaintiffs executed a usufructuary mortgage of a 3-pie share in the village Barhni to Sheikh Minnat Ullah, predecessor-in-title of the defendants, for Rs. 3,000. Out of the mortgage consideration they left with the mortgagee (1) Rs. 345 due by the plaintiffs to Harphul and Durbali Misir, simple mortgageee under a deed of 9th of June 1896 for Rs. 199, (2) Rs. 574 due from the plaintiffs to Minnat Ullah aforesaid under a mortgage-deed of the 19th of April 1898 which was pre-empted by Harphul, so that the amount due under this mortgage also was payable to Harphul and Durbali The mortgagees of the moitgage of the 19th of April 1898 brought a suit and obtained a decree on the 3rd of November 1911 for Rs. 1,884-2-0 with future interest on Rs. 399, the principal amount of mortgage money, at 6 per cent, per annum. The mortgagee, Minnat Ullah, was made a party to this decree. He did not discharge the amount due on this mortgage. The result wasthat the plaintiffs property, which was mortgaged in the mort gage of the 19thof April 1898 and which was other than the property mortgaged to Minnat Ullab, was sold on the 20th of October 1913 for Rs. 1,943 2-4. This sale has been confirmed and the purchasers are now in possession. The mortgagees under the mortgage of the 9th of June 1896 also brought a suit for sale against the mortgagor and the heirs of Minnat Ullah aforesaid, Minnat Ullah or his heirs did not pay the amount due and the mortgagees obtained a decree on the 23rd of February 1909 for Rs. 945-8-0. Minnat Ullah or his heirs did not discharge the aforesaid amount and the plaintiffs had to borrow money from one Ram Charan to pay off this amount, which they admittedly did. The plaintiffs have now brought this suit to recover the amount paid by them in discharge of the decree upon the mortgage of 896 with interest as also Rs. 5,000, the alleged value of their property which was sold on the 20th of October 1913 in execution of the decree on the mortgage of 1898, They now claim these two amounts against the defendants, who are some of the heirs of Minnat Ullah, as damages for the loss which they have actually sustained. The defenie pleaded was, amongst other matters: (1) that a suit like this did not lie and that the only remedy of the plaintiffs was to have this matter taken into account at the time of redemption, and (2) that the suit was barred by limitation The Court below has overruled both these contentions and has given a decree to the plaintiffs for the amounts which were due on the two decrees aforesaid with future interest on the amount of the decree on the second mortgage at the rate of 6 per cent, per annum up to the date of payment. The plaintiffs come here in appeal and the defendants have taken objections.

(2.) The first point raised on behalf of the plaintiffs-appellants is that the amount awarded by the Court below is insufficient. Their contention is that the property worth Rs. 5,000 had been sold and they were entitled to get that amount, because this was the loss actually caused to the plaintiffs by reason of the defendants failure to pay the amount due under the decree and which they had agreed to pay. So far as this point is concerned, the only evidence in support of the valuation of the plaintiffs property is the statement of the plaintiff Sarju Misra. There is no other evidence to support it, and we see no reason to in crease the amount of damages awarded by the Court below. We think that the plaintiffs have failed to prove that they suffered any more loss than the amount decreed to them by the first Court. It is farther contended that the Court below has erred in not awarding interest on the total amount of Rs. 1,884-2-0, the amount of the decree. Under the terms of the decree interest was not to ran on the whole amount of Rs. 1,884- 2-0, the decree having expressly allowed interest only on the principal sum secured by the mortgage of 1898, namely, Rs. 399, The plaintiffs are, therefore, not to get interest on a larger amount by way of damages.

(3.) Now we some to the objections taken by the respondents to the decree of the Court below. The first point taken by the defend-ants respondents is that the snit for recovery of these items is not maintainable as the plaintiffs remedy lay in asking for an account at the time of redemption. In our opinion this contention is not sound. It might have been objected at the time of redemption that the claim of the plaintiffs for recovery of damages was barred by time, and further there is nothing in the mortgage-deed itself to eon fine the right of the plaintiffs to a remedy by way of amounting at the time of redemption. We do not see on what principle the plaintiffs san be estopped from claiming damages in the present suit. We have not been referred to any authority in support of this contention, which on the face of it does not seem to be correct, and we cannot allow it. As to the second point taken on behalf of the defendants-respondents, namely, the plea of limitation, this plea has been urged before us from two points of view. The first is that this suit is barred by six years rule of limitation, having been brought more than six years after the breach of the covenant, which the respondents learned Advocate puts at the date when the mortgage of the 1st of Marsh 1900 was executed, His contention is that the cause of action of the plaintiffs for breach of covenant arose on that date, as there was no date fixed in the deed for the payment of the amounts which were withheld by the mortgagee defendants. As to this we have to remark that this argument might have been pertinently advanced if the plaintiffs suit had been to compel the defendants to place the plaintiffs in funds to meet the liabilities due to the other mortgagees. This is a suit which has been brought after the plaintiffs had suffered actual damage by either paying the amount due to one of the mortgagees to save their property or by their property being actually sold to satisfy the claims of the other mortgagees. Our attention has been drawn to the case of Raghubar Rai v. Jai Rai 14 Ind. Cas. 244 : 34 A. 429 : 6 A.L.J. 534. We think it enough to say that the point whether the date on which the actual loss was sustained gave the plaintiff a second cause of action did not arise in that case and was not decided. Any observations in that case on this point were simply obiter dicta. On the other hand, our attention has been invited by the learned Vakil for the plaintiffs-appellants to the case of Hakim Ali Khan v. Dalip Singh 19 Ind. Cas. 676 : 11 A.L.J. 478 in which a Bench of this Court has expressly laid down that limitation suit like the, present one run from the date of actual payment, so that the Flea of limitation based on the ground that the cause of action arose once for all on the date of the mortgage, fails. Another contention which has been put forward on behalf of the defendants-respondents in bar of the plaintiffs claim is that the date, of the payment of the mortgage of 1896 has not been proved and it has not been shown that the suit is within three years from that date. This is, in our opinion, a valid contention and must prevail. In the plaint it was stated that the payment was made immediately after the execution of the bond in favour of Ram Charan on the 26th of July 1911. That date has now been found to be incorrect. The correct date of the mortgage in favour of Ram Charan was the 19th July 1910. Therefore the payment must have been made, according to the plaintiff, own allegation in the plaint a few days after the execution of the bond bat is more than six years, to say nothing of three years before the institution of the present suit. As to the second item of Rs. 1,884 2-0 learned Counsel for the defendants put forward a contention that this was not a payment within Article 61 of the Limitation Act. He is faced with the difficulty that if the claim did not come within Article 61 of the Limitation Act, it would be governed by Article 120 of the Second Schedule at the same Act As to this second payment the plea of limitation fails. The result of the above findings is that the plaintiffs are entitled to Re 2,001-2.0 from all the heirs of Minnat Ullah, the original mortgagee. As the plaintiffs, however, have omitted to implead all the heirs of Minnat Ullah and have sued only some of them, they are only entitled to a decree proportionate to the share of these defendants in the assets of Minnat Ullah. The amount, therefore, due to the plaintiffs from the defendants respondents comes to Rs. 1,170 as agreed upon be the parties. The result is that the appeal fails and the cross-objections are partly allowed. We accordingly modify the decree of the Court below by substituting the sum of Rs. 1,170 for the amount decreed by the Court below. In other respects the decree of the Court below is maintained. Costs in this Court and in the Court below will be proportionate to failure and success, The opts in this Court will include fees on the higher state.