Brikant Pande vs Pandit Jamna Dhar Dube

Lindsay, J.—This is a plaintiff''s appeal. The suit was decreed in the Court of first instance but on appeal by the defendant the lower Appellate Court has dismissed the suit on the ground of limitation. In my opinion the judgment of the lower Appellate Court is wrong and must be reversed. The facts are very simple. The plaintiff executed a sale-deed in favour of the defendant in the year 1913. One of the terms of the sale-deed was that as part of the consideration the purchaser was to pay to a man named Ram Khilawan a sum of Rs. 285. Ram Khilawan was a creditor of the plaintiff-vendor.

The defendant failed to pay this sum and the result was that Ram Khilawan brought a suit against his debtor, the plaintiff in the present case, and obtained a decree against him which the plaintiff was obliged to satisfy.

It appears that by reason of the failure of the defendant to pay off Ram Khilawan, as he was bound to do under the terms of the sale-deed of 1913, the debt in Ram Khilawan''s favour swelled and the plaintiff had to pay a sum of Rs. 254 odd in addition to a sum of Rs. 285, the former sum representing the accumulation by way of interest.

The learned Judge in the Court below thought that limitation for damages began to run from the date of the execution of the sale-deed. In my opinion that was not so. The plaintiff''s cause of action accrued to him on the date he was obliged to pay to Ram Khilawan this sum of money which the defendant was himself under an obligation to pay. The proper Article, applicable, in my opinion, is Article 61. As the lower Court has decided the case solely on the question of limitation the result is that the case will now go back for disposal of the remaining issues. Costs here and hitherto will abide the result.