Judgment
Lawrence Jenkins, C. J.:-
This is a suit by usufructuary mortgagees in whose favour the lower appellate Court has passed a decree for Rs. 400.
In general a usufructuary mortgagee is not entitled to a personal decree but here this relief is based on the provisions of clause (6) of section 68 of the Transfer of Property Act. The date of the mortgage renders that Act inapplicable, but we will assume in the plaintiffs favour that the remedy indicated by section 68 is open to them apart from the Act.
If this be so the right to sue arises when the mortgagee is deprived of the whole or any part of his security not when the wrongful act or default occurs.
But judged by this test the cause of action came into existence in 1888 so that the suit is barred, and in this respect the Assistant Judge has erred.
Mr. Khare has then argued that in any case he is entitled to a decree for the sale of the property under section 15 clause 3 of Regulation V of 1827.
To this, however, there are two answers: 1st the mortgagees have not appealed against the adverse decision on this piont and 2ndly that the clause does not authorise the sate of a usufructuary mortgage.
Then it is said that in any case the mortgagees are entitled to recover on their covenant to repair and here we think they are right. The breach of the particular covenant with which we are concerned is a continuing one and therefore the bar of Limitation do not apply.
We must therefore reverse the decree under appeal and send back the case for the determination of the compensation payable to the plaintiffs by reason of the breach of the covenant to repair.
No costs of this appeal. The costs of the lower Courts to be in proportion having regard to the amount that will be awarded as damages and the amount claimed.
In awarding damages the Court will bear in mind that the defendant is sued as heir of the covenantor. Damages to be on the date of the suit in accordance with section 73 of the Contract Act.
Cases remended.