KUNWAR UNKAR SINGH Vs. KASHI PRASAD

JUDGEMENT

(1.) This is a second appeal by the plaintiffs whose suit for recovery of Rs. 2,500 principal and Rs. 1,015-10-0 interest, in all for a. sum of Rs. 3,515-10-0, has been dismissed by the lower appellate Court. The facts are admitted and are as follows: Jaswant Singh, the father of the plaintiffs, held a simple money decree against one Lalhans. He sold the decree to Kashi Prasad, defendant-respondent on 1 March 1923, for a sum of Rs. 2,500. The entire consideration was left with the defendant for payment to one Chiranji Lal, who held a decree against Jaswant Singh, the vendor. The defendant did not pay the amount left in deposit with him to Chiranji Lal, and Jaswant Singh, borrowed money from a third person by executing a mortgage-deed on 10th. December 1926, for discharging the decree of Chiranji Lal. Jaswant Singh died and, after his death, the plaintiffs brought the suit, giving rise to the present appeal, for recovery of the amount that was left in deposit with, the defendant for payment to Chiranji. Lal and which he had failed to pay. The plaintiffs claimed interest on the amount at the rate of 6 per cent per annum from the date of the sale-deed in favour of the defendant. The date of the cause of action alleged in the plaint was 12 December 1926, the date on which the mortgage-deed, mentioned above was executed by Jaswant Singh. The suit was filed oil.. 9 December 1929. The defendant resisted the suit inter alia on two grounds: That the sale-deed executed by Jaswant Singh in favour of the defendant was fictitious and without consideration, and was executed with a view to defraud certain creditors of Jaswant Singh. (2) That the suit was barred by limitation.

(2.) Both the Courts below held that the sale-deed executed by Jaswant Singh was for consideration and that the plea of the defendant-respondent that it was fictitious and without consideration was without substance. The finding of the lower appellate Court on the point is a finding on a question of fact and is binding on us in second appeal. The Courts below however have differed on the question of limitation. The trial Court held that the suit was governed by Art. 61, Sch Limitation Act, (Act 9 of 1908), and, as it was filed within three years from the date of the payment of the decretal amount to Chi-ranji Lal by Jaswant Singh, the suit was within time. The lower appellate Court, on the other hand, without deciding which article of Sch . 1, Limitation Act, was applicable, held that the suit was not a suit for damage's but was "for recovery of sale-money as stated in para. 6 of the plaint," and that time began to run against Jaswant Singh from the date of the execution of the sale-deed in favour of the defendant, and that the suit was barred by limitation. The learned Judge of the lower appellate Court relied on the decisions of this Court in Raghubar Rai V/s. Jai Rai (1912) 34 All 429 and Ram Narain V/s. Nihal Singh , in support of the conclusion arrived at by him, that time for the recovery of the amount claimed in the present suit began to run against the plaintiffs from the date of the execution of the sale-deed by Jaswant Singh, viz., from 1 March 1923. It was held in the case of Raghubar Rai that upon the failure of a vendee to pay money due by a vendor to a third party which the vendee agreed to pay and no time was fixed for payment, the breach is committed on the date when the sale-deed is executed: and there is no "continuing breach" within the meaning of Section 23, Lim. Act, nor "successive breaches" within the meaning o? Art. 115.

(3.) It was further observed by the learned Judges in that case that a breach of a contract can furnish only a cause of action and no more and that: actual loss when it occurs is only one of the results of the breach and is not an act of the party who breaks a contract and can therefore create no second cause of action.