1. The point for decision is what is the Article of Limitation applicable to the cause of action against 3rd defendant. He was a surety on a simple money bond for the payment of the suit mortgage debt by defendants 1 and 2. He undertook to pay 'if the principal and interest be not paid as per that bond,' i. e., Ex. A. Under Ex. A the period of the mortgage was ten months, but by a residuary clause it was stated that in default the mortgagor will pay the principal and the accruing interest 'whenever you demand'. It is pleaded that, as the mortgagor was bound to pay ' on demand ' at any time, the surety is equally liable. But plaintiff never at any time pleaded that he made any demand under this clause, and in his, plaint has clearly stated only one date for his cause of action, viz., the date of expiry of the mortgage period. Hence there has been no breach of the contract to pay on demand, no failure by the mortgagor to pay as per that clause in the bond and therefore no liablity on account of any such failure has fallen upon the surety.
2. Hence plaintiff is driven back on the limitation period applicable on the footing that the failure to pay as per the bond was only on the expiry of the mortgage period, viz., in June, 1915. The suit was filed on 31st March, 1922. Hence it is out of time unless plaintiff can call in aid an Article of the Limitation Act which gives a period of more than 6 years. He argues that Article 132 applies, contending that the suit as against the surety is a suit for payment of money charged upon immoveable property, because Section 128, Indian Contract Act, makes the liability of the surety co-extensive with that of the principal. Even so, I cannot see how that converts a suit against the surety on a mere money bond into a suit for payment of money charged upon immoveable property.
3. Respondent raised a preliminary objection that no second appeal lies because the claim against the surety, which is now the only claim agitated, is of a small cause nature. I do not consider it necessary to go into that, as appellant's case fails on the merits.
4. I see no reason to interfere and dismiss the appeal with costs.