ZIA UDDIN AHMAD KHAN Vs. AKBAR ALI

JUDGEMENT

(1.) This is an appeal by the defendants and arises out of a suit brought by the plaintiff-respondent for recovery of Rs. 3,580-10-0 as compensation for breach of a covenant container in a mortgage deed executed by the defendants-appellants in his favour. Both the Courts have decreed the suit. The facts are that the defendants executed, on 10 March 1928, a deed of simple mortgage for Rs. 1,600 in favour of the plaintiff, hypothecating a house situate in Firozabad, District Agra. The plaintiff brought Suit No. 10 of 1925 in the Court of the Subordinate Judge, Agra, for recovery of principal and interest due under the aforesaid deed by sale of the mortgaged property. A decree for sale under Order 34, Rule 4, Civil P.C., was passed in favour of the plaintiff. Ismail Khan, the first cousin of the defendants, objected, in execution proceedings, to him the house being sold on the allegation that it belonged to him and not to the mortgagors, the defendants. His objection was disallowed, and thereupon he instituted a regular suit for the declaration of his right to the house in question, which was dismissed by the first Court, but decreed, by the Court of the District Judge on appeal, on 15 February 1928. It was declared that the house in question could not be sold in execution of the decree "obtained by the plaintiff on foot of his mortgage deed. Consequently the decree became infructuous. A suit for a simple money decree was barred on that date.

(2.) The suit, which has given rise to this appeal, was instituted on 10 July 1928 for damages for breach of a covenant contained in the mortgage deed, which runs thus; If, in consequence of any act done by me, the executant, or my heirs or in consequence of a dispute raised by a third person, any loss is occasioned to the mortgagee as regards the sum due under the deed, the person and the other property of the executant shall be made liable to make good the loss and costs, etc.

(3.) The cause of action for the relief claimed by the plaintiff is said to have accrued to him on 15 February 1928, when the house mortgaged by the defendants-appellants under the deed, dated 15 March 1928, was declared to be the property of Ismail Khan and not liable to be sold in execution of the decree in favour of the plaintiff.