JAGAT NARAYAN, J. - (1.)THIS is a defendant's revision application against a decree of the Judge, Small Cause Court, Bharatpur, in a suit for recovery of a sum of Rs. 102/8/6.
(2.)THE father of the defendant mortgaged a house usufructuatily with the plaintiff and delivered possession to him. THE consideration was a sum of Rs. 75/ -. He however took the house on lease from the plaintiff at a rent of annas -/6/- per month and executed a rent-note. In 1949 possession over the house was taken forcibly by one Kistoor Chand who claimed to be the owner of it. THE defendant instituted a suit for possession against Kistoor Chand. This suit was dismissed by the Civil Judge on 5. 4. 54. THE defendant preferred an appeal against this decision. During the pendency of appeal the present suit was instituted on 26. 5. 55 by the plaintiff for recovery of Rs. 75/- the principal sum borrowed by the defendant's father on the mortgage together with damages at -j6j- per month for a period of 6 years. According to the plaint the cause of action accrued on 5. 4. 54 when the suit brought by the defendant against Kistoor Chand was dismissed by the trial court. THE suit was resisted on various grounds which were overruled by the Judge, Small Causes.
The first contention on behalf of the petitioner is that the suit was not triable as a small cause suit as it fell under Art. 15 of Schedule II, being a suit for the specific performance of a contract.

So far as the allegations in the plaint are concerned the suit can only be regarded as one for enforcing a right conferred under sec. 68 (1) (d) of the Transfer of Property Act. The mortgage-deed contained an express covenant that in case the mortgagor's title were to be found to be defective he would be bound to refund the mortgage money. This express covenant was not referred in the plaint. The present suit cannot therefore be regarded as one for enforcing the covenant. It was therefore triable by court of small causes.

The next contention on behalf of the applicant is that the suit was barred by limitation. According to the learned counsel for the applicant Art. 97 is applicable to the suit. The trial court held that either Art. 116 or the residuary Art. 120 was applicable. Art. 97 runs as follows: - Description of Suit Period of limitation Time from which period begins to run For money paid upon an existing consideration which afterwards fails. Three years. The date of the failure.

In a usufructuary mortgage the consideration for the mortgage money is the delivery of possession over the mortgaged property as well as the security furnished. In the present case possession was delivered to the plaintiff at the time of the mortgage in 1933. In 1949 when Kistoor Chand took possession over the mortgaged property the plaintiff was dispossessed. The consideration for the mortgaged money thus failed in 1949. Art. 97 is thus applicable to the, facts of the present case. The period of limitation under this article is three years. Time begins to run from the date of failure of the consideration. In the present case time began to run from 1949 when the plaintiff was dispossessed by Kistoor Chand. The present suit which was instituted in 1955 was barred by limitation.

Art. 116 is only applicable to suits for compensation, for breach of a contract in writing registered. This article would be applicable to the present suit if it can be regarded as one for compensation for breach of a contract. The suit is not based on the breach of the express covenant contained, in the mortgage-deed. Nor is it based on the breach of any implied, covenant. The suit can only be taken to be a suit for the enforcement of a right under sec. 68 (1) (d) of the Transfer of Property Act. The covenants which are implied in a contract of mortgage are enumerated in sec. 65 of the Transfer of Property Act. The right which accrues under s. 68 (1) (d) is not a Common Law right and it cannot be regarded as an implied covenant attached to the mortgage. Art. 116 is therefore not applicable to the present suit. J

In Unichaman v. Ahmed Kutti Kayi (i) the mortgagor who had executed a usufructuary mortgage failed to secure possession to the plaintiff who was ejected from the mortgaged property. The trial court held that Art. 97 was applicable to the suit and dismissed it as time barred. On appeal the High Court held that Art. 116 or 120 was applicable. It was observed: - "the claim is for money lent on a usufructuary mortgage, the cause of action being the failure of the mortgagor to secure the mortgagee in possession. The liability to secure the mortgagee in possession, or, in default to repay the mortgage money, is not a liability arising under the common law on the ground of failure of consideration, but is a liability imposed by sec. 68 of the Transfer of the Property Act. If this liability be taken to be one arising under a covenant implied by law as incidental to the mortgage contract (which was in writing and registered) then art. 116 of the Limitation Act would apply. Otherwise the appropriate Art. is 120, the case not being otherwise provided for. " I have shown above that the liability cannot be taken to be one arising under a covenant implied by law as incidental to the mortgage contract as it neither arises under the Common Law, nor is it an incident of the mortgage under sec. 65 of the Transfer of Property Act. This liability is one imposed by sec. 68 (1) (d) of the Transfer of Property Act. Their Lordships were of the view that sec. 97 is only applicable to liabilities arising under the Common Law. The above decision has been followed by the Madras High Court in a number of cases and, it has been held that a suit to enforce a liability created by statute is governed by Art. 120.

Their Lordships of the Privy Council however applied Art. 97 in Ma Hnit vs. Fatima Bibi (2), a case from Burma, where the Transfer of Property Act was in force and where the liability could only have arisen under s. 68 (1) (d) of the Transfer of Property Act. The view expressed in Unichaman's case (1) that Art. 97 is only applicable to a liability arising under the Common Law is therefore no longer tenable after the decision of the Privy Council in the above case.

The learned Judge, Small Causes held, relying on Maung Yan Kwin Vs. Mating Po Ka (3) that Art. 116 or Art. 120 was applicable to the case. For reasons given above I am unable to subscribe to the view taken in the above case. I hold that Art. 97 is applicable. The suit is accordingly barred by limitation.

Even if the suit had been filed within limitation the plaintiff would have not been entitled to any damages in addition to the mortgage money. All that sec. 68 of the Transfer of Property Act provides for is return of the mortgage money.

I therefore allow the revision application and set aside the decree of the court be-low. In the circumstances of the case I direct that parties shall bear their own costs throughout. .

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