Tudball, J.:— This appeal and Second Appeal No. 356 of 1918 arise out of two cross-suits brought by the same parties. Two persons Shah Muhammad Fasi-uz-Zaman and Shah Abdur Razzaq, ancestors of the plaintiffs respondents, executed a usufructuary mortgage of their share in Mauza Kol together with a grove in favour of Baldeo Prasad the present defendant appellant's predecessor-in-title, in lieu of a sum of Rs. 1,000, and out of it they left Rs. 530 in the bands of the mortgagee for payment to a prior mortgagee named Tepeshwar Rai.
2. This sum was due on foot of a deed, dated the 20th of February, 1890. The prior mortgage covered not only the property in Mauza Kol but other property belonging to the mortgagors. In the mortgage deed in was clearly and distinctly set down that the money was to remain with the mortgagee and that any interest which might accrue on this sum in the future would be entirely upon his shoulders and that he would have to pay it when he paid Rs. 530. It is quite clear from the deed that the money was left with Baldeo Prasad to pay whenever he pleased, so long as he did pay it, he being solely responsible for any interest which might accrue. Baldeo Prasad did not pay this money and later on the prior mortgagee obtained a decree for Rs. 962-8-3 on the 14th of December, 1905. He assigned his decree to another person who took out execution of it, and on the 20th of January 1912 the share in Mauza Kol was put to sale and purchased by defendant No. 3 for Rs. 500. The prior mortgagee then sought to bring the remaining hypothecated property to sale in satisfaction of the balance of the mortgage debt, whereupon the original mortgagors in order to save their property paid Rs. 718-6-6 and saved it. They have now sued to recover damages from the mortgagee. The heirs of the mortgagee at the same dime have brought a suit to enforce their mortgage-deed and to recover the money on the allegation that the mortgagors have not put them in to possession of all the mortgaged property.
3. We must note here that the mortgage in favour of Baldeo Prasad was a usufructuary mortgage. The Courts below have come to the same conclusion, namely, that the allegation of the mortgagees that the mortgagors did not put them into possession of the mortgaged property is untrue. They have therefore dismissed the mortgagees' suit. In the mortgagors' suit for damages they have taken into account what was due from the mortgagors to the mortgagees and have come to the conclusion that the sum of Rs. 996 is due to the plaintiffs mortgagors from the defendants. This amount has been decreed in their favour together with proportionate costs in both Courts. The point taken before us in this appeal, that is to say, the appeal of the defendants mortgagees is that the suit is barred by limitation. It is urged that the cause of action accrued on the date of the mortgage that is on the 12th of May, 1899. Our attention has been called to certain rulings under which if this contention were correct the suit would be barred by limitation. But in our opinion those rulings do not affect the present case. They do not apply, inasmuch as the facts are different. It is clear to us that the agreement between the parties to the mortgage of the 12th of May, 1899 was that the mortgagee might pay the sum of Rs. 530 to the prior mortgagee when and where he pleased, he baking upon his shoulders all liability for the interest which might in future accrue. This being so the present plaintiffs had no cause of action until they were damnified. The suit was brought in the year 1916, well within the period of six years from the 20th of January, 1912. The suit is clearly governed by article 116 of the Limitation Act, being a suit for compensation for breach of a contract in writing registered. In our opinion it is not barred by time and the appeal therefore fails and is dismissed with costs.
4. Appeal dismissed.