1. This defendants' appeal an arises out of a suit “for enforcement of a hypothecation lien by sale of the property specified.” The only question with which we are concerned is whether Article 132, Lim. Act or whether Article 116/115 applies, and whether the suit is barred by limitation. The fact's are as follows: One Dewan Singh, whose heir is the present plaintiff, had two properties, which we will call A and B. On 19th September 1902, he executed a simple mortgage of both the properties A and B in favour of Ramrich Pal.
2. On 18th February 1905, he sold the property A to the present defendants for Rs. 700 leaving with them Rs. 480 to pay off the mortgage in favour of Ramrich Pal.
3. On 20th July 1905, Dewan Singh executed another mortgage in favour of Shamsundar, hypothecating the property B. The defendants did not discharge the mortgage in favour of Ramrich Pal, and accordingly properties A and B both remained subject to the mortgage. The excuse of the defendants for their default was that they did not get possession of the whole of the property; but that excuse appears to have been merely a pretext, for the learned Judge of the lower appellate Court remarks:
“It is further urged for the appellant that the vendees did not obtain mutation of the whole of the property sold and that consequently the whole claim should not have been decreed. It appears that the vendees for a long time have lain low and have taken no steps to obtain the small area of which they did not get possession.”
4. It is further to be noted that it is not suggested on behalf of the present plaintiff, the mortgagor, that he took any steps whatever to see that the vendees did discharge the first mortgage. So far, therefore, as responsibility for the, subsequent confusion can be attributed to either, it would seem that they must both bear it equally.
5. The next step was taken by Ramrich Pal, the prior mortgagee of properties A and B, by filing a suit, No. 167 of 1911, in which on 1st July 1911, he obtained a decree for Rs. 1,332-2.
6. Shamsundar, the puisne mortgagee of property B, then brought a suit, No. 1049 of 1911, on his own mortgage and obtained a decree for Rs. 519-7. Shamsundar next proceeded to pay up the decree of the prior mortgagee and secured for himself a consolidated decree for Rs. 2,229-1-3. He proceeded to execute this decree, and in order to save his property the mortgagor paid, on 15th January 1918, a sum of Rs. 1,000 and on 15th April 1918, a further Rs. 400. A sum of about Rs. 700 odd remained unsatisfied, and Shamsundar proceeded to execute his decree for the balance. In pursuance of this execution the property A was sold at auction, and the defendants, who, it will be remembered, were the purchasers of property A, got the sale set aside on payment of Rs. 758. This did not, however, wholly satisfy the consolidated decree, for in the in terval further interest had accumulated and there remained due at the date of the present suit to Shamsundar Rs. 377-13.
7. The net result was that to pay off the consolidated decree against the properties A and B the plaintiffs, heirs of the mortgagor, had paid a total amount of Rs. 1,400. The defendants had paid Rs. 758, and a balance still remained due of Rs. 377-13.
8. In the present suit the plaint recites these facts and the plaintiff claims that though he paid Rs. 1,400, only Rs. 707, out of the consolidated decree was due to the mortgagee of property B originally in favour of Shamsundar, and that is all he should have had to pay, and that the defendants were really responsible for the balance of Rs. 693 which the plaintiff had paid and which he never would have had to pay if the defendants had, according to their original agreement of sale, paid half of the mortgage in favour of Ramrich Pal of properties A and B. Plaintiff further claims about Rs. 301 interest. He also urges that before his property B can be held to be perfectly secure, there is the balance of Rs. 377-13 to which Shamsundar is still entitled as the unpaid balance of his consolidated decree. Plaintiff, therefore, also claims this sum from the defendants, apparently on the allegation that he may himself at any time be called upon to pay it if he desires to save his property.
9. It will be noted that the sale-deed is dated 1905, and the condition that the vendee was to pay Rs. 480 to discharge the first mortgage had no condition attached to it that the Rs. 480 was to be paid at any particular time, or that the defendants could choose their own time for payment, provided that they were responsible for future interest that might accumulate and provided that they paid off the mortgage in time to save the property from being put to sale—a proceeding which would have resulted in the property B also being in danger of being sold which the mortgagor had kept with himself. The plaintiff has not brought his suit till 1922, and it is contended for the defendants that the suit is barred by limitation as coming within Article 132, Lim. Act. For the plaintiff it is contended that Article 116/115 is applicable.
10. We will consider first which of the two articles is applicable and then consider whether the suit would be within time even if the plaintiff's contention were to be accepted that Article 116/115 was the appropriate article. It appears to us that the plaintiff's suit is avowedly one to which Article 132 is applicable. The relief asked for is not for compensation for a breach of contract. It is specifically a suit to enforce payment of money charged upon immovable property. He specifically asks for “the enforcement of a hypothecation lien by sale” of the property, and that really can only have reference to Section 55(4)(b) of the Transfer of Properrty Act. It is true that the plaintiff asks for sale of the property in satisfaction of his claim for a sum of Rs. 1,367-8, a total which he arrives at by adding together a sum which he has had to pay so far to preserve the property, interest thereon and the sum which he may be called upon to pay in the future. It may be that if his relief was properly framed as a claim under Section 55(4)(b) of the Transfer of Properrty Act, it should have been a claim for Rs. 480 together with interest to date. The fact, however, remains strikingly apparent in the suit as framed that it was a claim for “enforcement of a hypothecation lien” and not a suit for compensation for breach of contract. On the face of it, therefore, Article 132 is the most appropriate article to apply. It requires very little experience of the Limitation Act to know that in many cases, in addition to the obviously appropriate article, there are other articles which can by forced reasoning be, to some extent at any rate, applicable. In our view, however, Article 132 is clearly the article applicable to a relief asking for enforcement of a hypothecation lien. (We quote from the relief). This is really sufficient in our view for a decision of the case. Neither of the Courts below has discussed the applicability of Article 132. They have contented themselves with giving reasons for holding Articles 116/115 to be applicable. It is, therefore, desirable, to say a few words in reference to those articles. In holding them applicable neither of the Courts has thought it necessary to consider the language of the articles themselves, but both Courts have contented themselves, with referring to certain rulings. Article 116 merely refers back to Article 115, and that says that limitation for a suit for compensation for the breach of a contract is to run from the date
“(a) when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases.”
11. Neither of the two later conditions is applicable here. We should merely have to consider “when was the contract broken.” Bearing in mind the terms of the conditions in the sale-deed, which were merely that the mortgage was to be paid off, without giving the vendee the liberty to pay it off at some future time or to pay it off whenever he pleased, provided that he was responsible for future interest and paid it off before the property was endangered, the presumption is that he was to pay it off immediately or, if not immediately, at any rate as soon as was reasonably possible. It matters little whether that period he held to be 24 hours or a week. He clearly, therefore, broke his contract on 18th February 1905, when he undertook to pay off the mortgage, or within a very short but reasonable period therefrom: cf. Raghubar Rai v. Jaij Rai . [1912] 34 All. 429. Incidentally it may be noted that in that case Article 116 was applied but the pleadings were admittedly not clear and both sides agreed that the suit was to be considered as one for damages on breach of the covenant.
12. Even, therefore, applying Article 116/115 the suit would appear to be barred by limitation. This aspect of the case the Courts have not considered. The trial Court relied on the case of Hakim Ali Khan v. Dalip Singh . [1913] 11 A.L.J 478. In that case it was held that limitation would run from the date on which the mortgagor or his successor-in-title had to pay the decretal amount. There is nothing in that case to show what were the terms of the contract between the mortgagor and his vendee. Nor is it clear how the suit was framed; nor was there any discussion as to the applicability of Article 132 or Article 116/115. In Ishri Pershad v. Muhammad Sami . A.I.R 1921 All. 133. the contract between the mortgagor and a subsequent mortgagee who failed to discharge the prior mortgage with the money left in his hands for that purpose was wholly different to that in the present case. In the contract there the mortgagee had undertaken all responsibility for further interest and could pay the prior mortgage at any time he pleased, and it was held that the cause of action therefore, did not accrue on the date of the contract but arose only when the mortgagor was damnified. The result is that we set aside the decree of both the lower Courts and dismiss the suit with costs throughout.
S.N/R.K
13. Decree set aside.