1. This is an application in revision from the decision of the Judge, Small Cause Court, Bulandshahr. The plaintiff filed an action for damages for breach of contract under these circumstances. There was a decree against the plaintiff-judgment-debtor for Rupees. 100 odd. A small sum of Rs. 10 had been paid and this amount was struck off in part satisfaction of the decree. There was still over Rs. 100 owing to the decree-holder. The decree-holder executed his decree for the balance by arrest of the judgment-debtor-plaintiff. The judgment-debtor objected on the ground that the balance-had been paid. This the decree-holder denied, and as there was no amount certified as paid under Order 21, Rule 2, Civil P.C. the objection of the plaintiff-judgment-debtor was dismissed. The plaintiff then filed this suit. He alleges that he had paid the amount due prior to the execution proceedings; that it was the duty of the decree-holder to certify the amount under Order 21, Rule 2; that the decree-holder by not certifying and by executing the decree had committed a breach of contract, and that the damage which he suffered was the amount which he had already paid to the decree-holder.
2. The learned Judge in the Court below in an unsatisfactory judgment, due to the fact that this is a Small Cause Court case, came to the conclusion that there was a memorandum recording the fact of the payment or adjustment of a portion of the amount due and that there was a balance still outstanding. He says: 'It appears that the defendant-decree-holder either relinquished the rest of his decretal amount or received it.' But as to the balance of Rs. 50 he found that the plaintiff judgment-debtor had been lying when he said that it was paid. The learned Judge goes on to say that the defendant ought to have given credit for the sum received or relinquished under the agreement and that the plaintiff is therefore entitled to damages for non-certification of the amount. The amount of damages which the learned Judge awards is the amount which the decree-holder either relinquished or had been paid. This is unsatisfactory. The learned Judge does not come to a definite finding whether the amount actually was paid or relinquished. If it was relinquished, it appears clear to me that there was no consideration for the relinquished and therefore it would be bad. But I do not need to decide the case upon this point. The main point for my consideration is whether on the claim as laid, any action lies at all. The action is for damages for breach of contract. In the first place I can- not see where the contract is in this case at all. In order to create a valid contract there must be consideration, and counsel for the plaintiff-judgment-debtor has failed, as indeed I think he must fail, to explain where the consideration in this contract is. If a debtor pays his creditor some portion of the amount which is due, that paymant cannot amount to consideration. The mere fact that the Civil Procedure Code casts upon the decree-holder a duty of certifying any such payment would not, in my opinion, amount to consideration for the mere receipt of money which is due.
3. Another fatal point, in my opinion, against the contention of the plaintiff-judgment-debtor is this: Assuming for the sake of argument that there was a contract between the decree-holder and the judgment-debtor under the circumstances given above, and assuming also that the failure of the decree-holder to certify is a breach of that contract, and assuming, in the third place, that the damages would be the amount of the money already paid to the decree-holder, it appears clear to me that, a principle of law has not been considered by the lower Court, that is, that if a contracting party has suffered damage through breach of contract by the other contracting party, it is his duty to minimise that damage, and if he fails to do so when it was in his power he cannot recover in respect of the damage which he could have avoided. This principle of English law is recognised and enforced in the explanation to Section 73, Contract Act. In Order 21, Rule 2(2), Civil P.C., enacts that the judgment-debtor himself may also certify any payment made by him to the decree-holder, and that the Court shall certify at the instance of the judgment-debtor in the same way as it would certify at the instance of the decree-holder. It was clearly therefore within the power of the judgment-debtor to cretify any payment made by him. If he had done so, it is clear that he would have suffered no damage. He failed to do so, when it was in his power, and therefore he puts himself out of Court as regards his claim for damages.
4. Another point which arises is this. Assuming that there is a contract, and a breach of it, it appears to me that the cause of action would only arise as and when the plaintiff actually suffered damage. There can be no action for breach of contract unless damage has actually been suffered. In this case the action was commenced before the judgment-debtor had paid the amount due by him to the decree-holder twice over. There could, in my opinion, be no damage in paying only what was due. This view of the matter has been held in A. Shanmugappa v. A. Mariappa (1910) 6 IC 267. In the case of Medal Kaliani Anni (1907) 30 Mad 545 another learned Single Judge of the Madras High Court held that the cause of action arose on execution proceedings being commenced by the decree-holder and before the amount had been paid twice. This dispute in the Madras Court however has been settled by a Bench case in Gopalasami Naick v. Nammalwar Naick AIR 1919 Mad 773. That Bench decided that the cause of action arose on execution proceedings being started and before the amount had been paid twice. With regard to these cases decided in the Madras High Court, it is to be noted that neither the point as to what the consideration was in such a contract, nor the point as to the duty of the judgment-debtor to minimise damage was considered by the learned Judges. In any event I respectfully disagree with the above decision for the grounds given above. I however agree with the decision in the case in Shanmugappa v. A. Mariappa (1910) 6 IC 267. In this view of the matter, in my opinion, there was no cause of action for damages for breach of contract. The application therefore is allowed, the decree of the lower Court set aside and the suit dismissed with costs.