KOTAPPA Vs. VALLUR ZAMINDAR
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(1.) The only right of action to which the plaintiff, on the allegations made in the plaint, could be entitled, is a right to recover damages for breach of contract, The plaint certainly does not set out in terms that cause of action for the plaintiff seeks to recover the money extracted from him under the decree of the High Court with interest thereon and does not ask for damages. But all the necessary allegations are made in the plaint. The contract and the breach of it are alleged and the written statement shows clearly that the defendant understood what the claim against him was. We think the plaint must be read as sufficiently disclosing a cause of action. It cannot possibly be said that the defendant has been prejudiced by the omission to ask specifically for damages.
(2.) Then it is said that the suit is barred by limitation because the breach was made more than three years before the suit was filed. The answer to this is that the undertaking of the defendant to withdraw his second appeal was embodied in the registered mortgage instrument which he accepted from the plaintiff, The fact that the instrument is not signed by the defendant does not take the case out of the operation of Art. 116 of the schedule to the Limitation Act. We, therefore, hold that the suit is not barred by limitation. It is unnecessary to consider whether any cause of action would have accrued on the mere passing of the decree without any money being exacted under it. The plaintiff is clearly not entitled to the whole amount of the claim. The damage suffered by him is the amount levied from him minus the amount due by him under the mortgage with interest up to the date of the tender of the money (viz., the 5 September 1893) that tender having been refused.
(3.) We must reverse the decree of the Subordinate Judge and restore that of the District Munsif, modifying it by substituting the sum of Rs. 1,092-3-3. The defendant must also be directed to give up the mortgage instrument to the plaintiff.;
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