Madhavan Nair, J.
1. Plaintiff is the appellant. The only point argued before me is the question of limitation, the facts relating to that question may be thus briefly stated: Defendants Nos. 1, 2 and 3 are brothers. At a time when they were joint and undivided, the plaintiff had executed a mortgage bond to the 3rd defendant on which a decree had been obtained by him against the plaintiff for Rs. 1,047. On a statement made by defendants Nos. 1 and 2 that in a partition the mortgage decree had fallen to their share and that, if the plaintiff should pay a sum of Rs. 825 they would accept it in full discharge and get the decree cancelled, the plaintiff paid Rs. 825 to them on the 12th of December 1912 and filed a petition for recording satisfaction of the decree. This petition for entering satisfaction was, on 3rd defendant's objection, dismissed on the 21st of May 1916. The appeal against that order filed by the plaintiff was rejected on the 14th of November 1916. When the 3rd defendant in execution of his decree brought the mortgaged property to sale, the plaintiff paid the amount of Rs. 1,475 and odd under the decree into Court on the 16th of October 1917 and got the sale set aside. As the plaintiff had thus to pay the 3rd defendant's decree debt, he filed the suit out of which this second appeal has arisen, on the 31st of October 1919, for the recovery of the amount from defendants Nos. 1 and 2 on the ground that he had sustained loss by 'mistake and failure of consideration from them.' Both the lower Courts held that Article 97 of the Limitation Act applied to the facts of the case and that as time began to run against the plaintiff from the date on which his petition for recording satisfaction was dismissed, namely, the 21st of May 1916, his suit was barred.
2. It has been first argued by the learned Vakil for the appellant that Article 83 of the Limitation Act in the correct Article applicable to the facts of the case and, since the plaintiff has filed his suit Within three years from the Kith of October 1917, i.e., the date of payment to the 3rd defendant i.e., when he was actually damnified, his suit is not barred under Article 83 of the Limitation Act. This argument has been put forward for the first time in second appeal and no foundation is laid for it either in the pleadings or in the evidence. To apply this Article, an investigation will have to be made as regards the nature of the undertaking of defendants Nos. 1 and 2, viz., whether it amounts to a contract of indemnity and this cannot be done on the bare averments of the plaint which in the course of the statement of facts refers obviously to Article 97 as the Article applicable to the case. I, therefore, disallow this argument. For similar reasons the argument that Article 115 of the Limitation Act would apply to the facts of this case must also be disallowed. The last argument that has been strongly pressed before me is that, if Article 97 applies to the facts of this case, the time of the institution of the suit should be calculated not from the date of the dismissal of the application for the satisfaction of the decree as was held by the lower Courts, but from the 16th of October 1917 when the plaintiff paid the amount to the 3rd defendant which must be taken to be the date of the failure of consideration and in support of this argument strong reliance is placed upon a decision reported as Sankara Variyar v. Ummar : (1922)43MLJ721
3. In my opinion, the cause of action for the plaintiff to institute the suit arose when the application for recording satisfaction was dismissed by the Court and time began to run from that date, as the consideration failed then under Article 97. That this is the correct view appears to follow from the decision of the Privy Council in Hukum Chand Boid v. Pirthichand Lal Chowdhury 50 Ind. Cas. 444 : 46 C.P 670 : 17 A.L.J. 514. 1919 36 M.L.J. 557 : 23 C.W.N. 721 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 30 C.L.J. 71 : 26 M.L.T. 131 : 10 L.W. 416 : 46 I.A. 52 In that case with reference to the argument as regards Article 97 of the Limitation Act, their Lordships say: 'There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which limitation period should run, but that is not the case here. The quality of the possession acquired by the present purchaser excludes the idea that the starting point is to be sought in a disturbance of possession or in any event other than the challenge to the sale and negation of the purchaser's title to the entirety of what he bought involved in the decree of the 24th of August 1905.' This shows that ordinarily the starting point of limitation is the challenge to the sale and the negation of the purchaser's title but the starting point may be other than this when the quality of possession excludes that idea. It was in view of this quality of possession that the learned Judges in Sankara Variyar v. Ummar : (1922)43MLJ721 the case strongly relied upon for the appellant, considered that the starting point was the disturbance of possession. In the present case there is no question so as to alter the usual rule, viz., challenge to the sale (i.e., the transaction of payment) or negation of the purchaser's title (i.e. plaintiff's title as one who validly discharges the decree) as the starting point for limitation. The order dismissing the application for recording satisfaction constituted a sufficient challenge or negation of the plaintiff's title, and since the present suit has not been filed within three years after that date it is in my view barred according to the principle enunciated in the Privy Council decision above referred to.
4. I, therefore, dismiss this second appeal with costs of respondents Nos. 1 and 2.