RAGHUBAR RAI Vs. JAIJ RAI

JUDGEMENT

(1.) The suit out of which this appeal arose was one for recovery of money. The plaintiffs case was as follows: On the 20th of April 1895, the plaintiffs sold certain landed property to some of the defendants and left a sum of Rs. 708 with the vendees for payment to one Sanehi Ram who was the mortgagee of some other property of the vendors. The vendees failed to pay. Sanehi s heirs sued on the mortgage and obtained a decree dated the 14th of January 1910 for Rs. 1,769-4-8. It is admitted that the plaintiffs have not" yet paid any money under the decree. They, however, on the 6th of June 1910 brought an action against the defendants for the recovery of the money covered by the decree. The Court of first instance treated the claim as one for the unpaid purchase-money and held it to be barred by time. The lower Appellate Court took the suit to be one for damages for the breach of the covenant to pay Rs. 708 to Sanehi, found that it was not barred by time and reversed the decree of the first Court. In second appeal it is urged that the plaintiffs have no cause of action and that if they have, the suit is barred by time. Notwithstanding the fact that the pleadings of the parties do not clearly disclose the nature of the suit, the learned Counsel for the appellants and the learned Vakil for the respondents are agreed that the suit is for damages consequent on the breach of the covenant to pay Rs. 708 to Sanehi Ram. Such being, admittedly, the nature of the suit, the first point for determination is whether, in the absence of an actual loss, the plaintiffs have a cause of action on the breach of the covenant. The contention of the learned Counsel for the appellants is that so far only a decree has been obtained against the plaintiffs, that they have paid no money under it and that as they have suffered no actual loss, their suit is premature.

(2.) The reply of the learned Vakil for the respondents is that the breach of a covenant i3 sufficient to create a cause of action and that an actual loss is unnecessary. He refers us to the following cases: Lethbridgs v Mytton (1831) 2 B. and Ad. 773 : 9 L.J. (O.S.) K.B. 330; Carr v. Roberts (1833) 5 B. and Ad. 78 : 2 N.M. 42 : 2 L.J. (N.S.) K.B. 183 : 39 R.R. 405; Loose more v. Radford (1842) 9 M. and W. 657 : 1 D. (N.S.) 881 : 11 L.J. Ex. 284. Ashdown v. Ingamells (1880) L.R. 5 Ex. D. 280 : 43 L.T. 424 : 50 L.J. Q.B. 109; Darsinga Tevar v. Arunchalam, Chetti 23 M. 441 and Raghunath Rai v. Brijmohan Singh A.W.N. (1901) p. 14.

(3.) The cases cited by the learned Vakil for the respondents fully support the proposition that the breach of the covenant without any actual loss gives a sufficient cause of action. Following the above mentioned cases, we hold that the plaintiffs, notwithstanding the fact that they have not paid any money under the decree dated the 14th of January 1910, have a cause of action in consequence of the breach of the covenant to pay Rs. 708 to Sanehi Ram. The next question is as to the date on which the said cause of action arose. In the registered sale-deed, dated the 20thof April 1895, no time for the payment of Rs. 708 to Sanehi Ram was fixed and the cause of action, therefore, arose on the date of the sale, i.e., the 20bh of April 1895. It arises on the date of the breach if a date fixed for the performance of a contract, but when no date is fixed for the performance, the dates of the breach and the promise coincide. The sale-deed being a registered document, Article 116 of the Limitation Act applies and limitation began to run when the contract was broken on the 20fch of April 1895. There are no successive breaches, fop they happen in those case3 only in which there is a promise to perform periodically, such as payment of rent or of annuity, nor is there any continuing breach which, in the words of Mr. Shephard, applies only to "contracts obliging one of the parties to adopt; some given course of action daring the continuance of the contractual relation." (Mitra on Limitation, Vol. I, p. 304, 5th Ed.). Hence if, was held in Mansab Ali v. Gulab Chand 10 A. 85 that, upon failure to pay the principal and interest secured by a bond upon the day appointed for such payment, breach of the contract to pay is committed, and there is "no continuing breach" within the meaning of Section 23 nor successive breaches" within the meaning of Article 115 of the Limitation Act (XV of 1877). The breach in the case before us occurred on the 20th of April 1895 and the action for compensation was brought on the 6fch of June 1910 and it was, therefore, barred by 6 years limitation under Article 116 of the Limitation Act. There is no substance in the suggestion that the obtainment of the decree of the 14th of January 1910 gives the plaintiffs afresh starting point of limitation. The law of limitation has prescribed certain modes which give a fresh starting point of limitation and the obtainment of a decree is not one of those.