1. One Chuni Bibi, the predecessor-in-interest of the plaintiffs, executed a zarpeshgi lease in favour of the defendant No. 1 on the 11th Agrahyan 1301 B.S. on receipt of Rs. 500 at an interest of Rs. 1-4-0 per month for a term of 9 years. By the terms of the lease the defendant No. 1 was to pay the rent payable to the superior landlord for the property and to apply the balance of the rent, which was fixed at Rs. 221, in liquidation of the mortgage-debt. On the expiry of the period of the lease there was to be a mutual adjustment of accounts and it was agreed that the mortgagor would pay any amount which might be due to the mortgagee and that the property would remain liable for such amount after the expiry of the lease. The lessee failed to pay the rent to the superior landlord, the latter obtained a decree for rent against the mortgagor and in execution of that decree the property was sold on the 23rd November 1904. The ejara expired on the 13th April 1905, and on the 11th April 1908 the plaintiffs-respondents brought a suit for adjustment of accounts against the defendant and that suit was decreed in part.
2. The present suit was instituted on the 11th April 1911 in which the plaintiffs claimed damages in respect of the loss occasioned by the sale of the property in consequence of non-payment; of rent by the defendant.
3. The Courts below have held that the plaintiffs are entitled to get a decree for the amount of rent which the defendant defaulted to pay to the superior landlord and the defendant has appealed to this Court.
4. We are of opinion that the suit is barred by limitation. A suit for compensation for breach of a contract in writing registered is to be brought within six years from the date on which the contract is broken. The contract to pay the head-rent must be taken to have been broken on the date of the sale, if not earlier.
5. It is contended on behalf of the respondents that the contract was broken on the date of the confirmation of the sale, which was within six years of the date of the institution of the suit, because the defendant might have paid the amount of rent and got the sale set aside. But apart from other considerations the decree being one for rent, and the defendant No. 1, not being a judgment-debtor, could not have paid the decretal amount into Court after the sale had taken place under the provisions of Section 174 of the Bengal Tenancy Act.
6. It is next contended that the claim may be treated as being founded on the mortgage and the suit was within time, as it was brought within six years from the date of expiry of the lease which was the 13th April 1905. Reliance is placed upon the case of Sivchdambara Mudeley v. Kamdkslii Ammal 3 Ind. Cas. 433 : 19 M.L.J. 498 : 33 M. 71 : 6 M.L.T. 239 which has also been relied upon by the Court below. In that case, however, there was an usufructuary mortgage not for a limited term, and the mortgagor obtained a decree for redemption of the properties mortgaged, which included a certain property which had been sold for arrears of Government revenue owing to the default of the mortgagee to pay the revenue which he undertook to pay under the deed of mortgage. Subsequently the mortgagor brought a suit for compensation for the loss sustained by the sale of the property. Previous to that the mortgagor, as stated above, had obtained a decree for redemption and it was contended that the mortgagor was bound to sue for the loss sustained by her within six years of the breach or she might, at the time the decree for redemption was passed, have asked that accounts might be taken and the mortgagee debited with the loss under Section 76 of the Transfer of Property Act if that gave the mortgagor further time; but she was not entitled to any more. The learned Judges held that Section 76 provided a cumulative remedy and was not intended to operate as a bar to any other remedy which the mortgagor might have under the law. They proceeded to lay down that the mortgagee was under an obligation, under Section 92 of the Transfer of Property Act, on being paid the debt due to him to put the mortgagor into possession of the property and that it was in the nature of a continuing obligation which could not be said to cease so long as the mortgagor's right to redeem was not barred, and as the suit was brought within six years from the date of the redemption-decree though more than six years from the date of the sale, the suit was held not to be barred by limitation. But in the present case there was no question of redeeming the mortgagee or of the mortgagor being put into possession, because under the terms of the lease the mortgage was to continue only for a period of nine years on the expiry of which the mortgagee was not to remain in possession of the property, he having merely a charge on the property as a simple mortgagee. The only thing to be done was the adjustment of accounts between the mortgagor and the mortgagee for the period of nine years and a suit was brought for the purpose and was decreed. This case, therefore, may be distinguished from the Madras case on that ground, though we must confess that it does not appear very clear to us how the plaintiff in that case could derive any assistance from Section 23 of the Limitation Act. We have been referred to a statement in the plaint of the previous suit, namely, that the plaintiff reserved the right of bringing the present suit for damages. Such a statement, however, made by the plaintiff, it is needless to observe, cannot prevent the suit from being barred by the provisions of Order II, Rule 2 (2), of the Civil Procedure Code or from being barred by limitation. We are accordingly of opinion that the suit (treating it as founded on the mortgage) is barred by Order II, Rule 2 (2), the present claim not having been included in the previous suit, and treating it as a suit for breach of contract it is barred by limitation.
7. The result, therefore, is that the decree of the Courts below must be set aside, the appeal allowed and the suit dismissed, each party bearing his own costs throughout.