TILAK RAM Vs. SURAT SINGH

JUDGEMENT

(1.) This is a reference to a Full Bench of the following issue of law : "Is the plaintiffs suit barred by limitation under the circumstances of the present case? "

(2.) The facts of the case are as follows : These four second appeals arise out of a suit brought by the plaintiffs to recover Rs. 5000 as damages from the defendants on account of a breach of contract. The plaintiffs were owners of property mentioned in Schedule A which was subject to the following three mortgages : (1) of 13 February 1902; (2) of 7 May 1919, and (3) of 28 September 1920. The first mortgage was a usufructuary mortgage and was for Rs. 3200. The second mortgage was a simple one and was for Rs. 1000 and the third mortgage was also a simple one and was for Rs. 5000. Out of the property mentioned in Schedule A, a part which is given in Schedule B was sold on 18tb September 1922 by three sale deeds to the defendants. By one sale deed plaintiffs, Sarupi and Mughla, sold property mentioned in the sale deed to defendants 1 to 3 for Rs. 4500. The entire sale consideration was left with the vendees for payment to the mortgagees of the mortgage of 28 September 1920, without any date being fixed for payment. By the second sale deed, the same vendors; sold to defendant 4 the property mentioned in their sale deed for Rs. 4000 out of which Rs. 3200 were left with the vendee for payment towards the usufructuary mortgage of 13 February 1902, and the balance Rs. 800 was left for payment to the mortgagee of the mortgage of 28 September 1920. By the third, sale deed, plaintiffs 2, 3 and 4 and Sarupi sold property to defendant 5, and Zalim, since deceased, predecessor of defendants 7 and 8, and Mukha, since deceased, predecessor of defendant 6, for Rs. 2000 out of which Rs. 1050 were left with the vendees for payment to the mortgagee of the mortgage of 7 May 1919 and Rs. 950 to the mortgagees of the mortgage of 28th September 1920.

(3.) No money was paid by the vendees. A suit, No. 3 of 1929, was brought by the mortgagees of the mortgage of 28 September 1920. A decree was passed in execution of which the whole of the property in Schedule A was sold on 23 July 1930. If the vendee had paid the money left with them to the mortgagees of the aforesaid mortgages, property mentioned in Schedule 0 would have been saved to the vendor. But this property was also sold with the remaining property in execution of the decree obtained by the mortgagee of the mortgage of 28th September 1920. The plaintiffs thereafter brought the present suit on 20 July 1933 to recover damages caused by the default of the defendants vendees in payment of the money left with them to the mortgagees. The plaintiffs claimed Rs. 5000 as damages for the value of the property C which had been sold. The defendants contended inter alia that the suit was time-barred. The trial Court decreed the suit for Rs. 3000 finding that the suit was within time. Cross-appeals were filed by plaintiffs and defendants 1 to 3 and 5 to 8. Defendant 4 did not appeal. The lower Appellate Court decreed the plaintiffs appeal and dismissed the defendants appeal. Defendants 1 to 3 and 5 to 8 have filed these appeals against the decree dismissing their appeals and the decree allowing the plaintiffs appeal in respect of the amount of damages which was enhanced by the lower Appellate Court. Appeals Nos. 303 and 304 of 1935 are by defendants 1 to 3 and Nos. 305 and 361 of 1935 by defendants 5 to 8.