Pearson and Straight, JJ.:— The facts of the case appear to he as follows:— In 1875, the plaintiff-respondent, Kura Mal, advanced a sum of money to Bahai, the now answering defendant, upon the security of certain property, of which the mortgagee was to have possession. This not having been given, Kura Mal instituted a suit on the 22nd November, 1875, for recovery of the amount of money lent by him. On the 25th of the same month, in consequence of information received by him to the effect that Bahai was about to convey a portion of his property, which would be available for execution should he succeed in his suit, Kura Mal caused a notice to issue, under s. 81 of Act VIII of 1859, to Bahai directing him not to transfer any of his property. This notice was duly served on the 29th November, 1875, but on the 1st December immediately following Bahai executed a deed of sale to Batul-un-nissa, the wife of Tawangar Ali, the defendant-respondent. Kura Mal's suit against Bahai was dismissed by both the lower Courts, but on appeal to this Court his claim was decreed on the 7th August, 1876. In execution he brought to sale a grove, which realized Rs. 238, and some, bullocks, which fetched Rs. 127, but this left Rs. 1,219 of the decretal amount still unsatisfied, and this he now seeks to realize by the present suit, brought on the 1st July, 1879, by voiding the deed of sale of 1st December, 1875, on the ground that it was fraudulent and without consideration. Both the lower Courts decided in his favour and decreed his claim. The defendant appealed to this Court, and at the first hearing before us it was contended by Mr. Colvin his Counsel that the suit was barred by limitation, in that art. 91, sch. ii of Act XV of 1877, provides that suits of such a character must be brought within three years from the date when “the facts entitling the plaintiff to have an instrument cancelled or set aside became known to him,” and that it was clear in the present case the plaintiff knew such facts before the end of 1875. We thought it right to remand an issue, under s. 506 of Act X of 1877, to the lower appellate Court for it to determine when the plaintiff actually did know the facts as to the fraudulent character of the deed of sale of 1st December, 1875. The Judge has now returned to us a finding that the plaintiff Kura Mal was aware of them “as early as the 11th December, 1875.” But it is urged on his behalf that, though he had knowledge of them at that time, he was not in a position to take advantage of such knowledge, by the institution of a suit, until after the 17th August 1876, when this Court gave him a decree upon which execution could issue, and after the sale of the grove and bullocks in execution of that decree, when it became apparent that there was no other property available for the realization of the balance still remaining due but the land to which the present suit refers. This view was adopted by the lower Courts and upon consideration we are not disposed to dissent from it. We think that the words “when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him” must be construed to mean, when, having knowledge of such facts a cause of action has accrued to him and he is in a position to maintain a suit. In 1875, when he sued upon his mortgage, “non constat” but that he might fail or, if successful, that there might have been property of his judgment-debtor sufficient to satisfy his claim. Until the result was known of the former sale in execution of this decree of the Court, it is difficult to see what “locus standi” he could have had in any Court to ask to have the deed of sale set aside. Under these circumstances we are of opinion that the decisions of the lower Courts should be maintained and that this appeal should be dismissed with costs.
Appeal dismissed.