Brodhurst and Mahmood, JJ. (After stating the facts, continued):— Bearing in mind the provisions of the last paragraph of s. 2 of the present Limitation Act, there can be no doubt that the present case is governed by the provisions of Act XV of 1877, and not by those of Act IX of 1871. Whether the present suit would have been within limitation if brought whilst the latter Act was in force is therefore a question with which we are not concerned. But the Judge, in following the ruling of this Court in the case of Sadha , does not appear to me to have considered that case was decided under s. 23 Act IX of 1871, and that the provisions of that section have undergone a considerable change in the corresponding s. 23 of the present Act. For the purposes of this case, it is not necessary to discuss minutely all the alterations in the law which s. 23 of the present Act has intorduced. It will be sufficient to confine my observations to the point on the determination of which the decision of the appeal depends. The rule contained in s. 23 is a rule for computation of the period of limitation. The section of Act IX of 1871 gave the benefit of the rule to suits “for the breach of a contract, where there are successive breaches,” and also to suits “where the breach is a continuing breach.” The corresponding s. 23 of Act XV of 1877 confines that benefit to the latter class of cases only (viz., cases of “a continuing breach of contract,”) and provides that in such cases “a fresh period of limitation begins to run at every moment of the time during which the breach continues.” But I have no hesitation in holding that the present is not a case of “a continuing breach” of contract at all. The obligation created by the ikrar-nama of the 8th May, 1844, was not of such a continuing nature as is contemplated by the Act, and there could therefore have been no “continuing breach” such as would entitle a suit based thereon to the benefit of s. 23 of the present Act. That section contemplates cases like the covenant by a tenant to keep the tenanted building in repair; cases in which the obligation created by the contract is ex necessitate of a continuing nature; and the right of action therefore naturally arises every moment of the time during which the breach continues. In the present case the obligation created by the ikrar-nama was of a recurring kind, and could admit only of a series of “successive breaches,” such as were provided for by s. 23, Act IX of 1871, but are not within the purview of s. 23 of the present Act. The precedent which the Judge has relied on is therefore wholly inapplicable to the present case, which is governed by Act XV of 1877.
Such being my view as to the inapplicability of the above-mentioned rule of computation of the period of limitation to the facts of this case, I am further of opinion that the suit falls under No. 143 of the present Limitation Act, and the defendants, having been proved to have broken the conditions of the ikrar-nama more than twelve years ago, the suit was rightly dismissed by the Court of first instance as barred by limitation. The Judge in his anxiety to follow a ruling appears to me to have lost sight of the express words of the law and to have omitted to consider the change which the Legislature has introduced since the precedent relied upon by him was made. I would decree the appeal, and setting aside the decree of the lower appellate Court, restore the decree of the Court of first instance; the plaintiffs-respondents paying all costs in this Court and in the Courts below.
Brodhurst, J.:— I concur in decreeing the appeal with costs on the ground that the suit is, for the reasons stated by my learned colleague, barred by limitation.