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Madras High Court
Srinivasa Raghava Dikshidar And … vs Rangasawmi Iyengar And Ors. on 7 May, 1908
Equivalent citations: (1908) 18 MLJ 477


1. In this case there had been an exchange of lands between the parties and the exchange deed, Exhibit A, which is a registered document, contains the following provisions: “There is no dispute in respect of the said lands. If disputes should so arise, the respective party shall be answerable to the extent of his private property.” The plaintiff was subsequently-deprived of some of the laud acquired by exchange and brings this suit upon the above covenant more than three but less than six years after the date of deprivation. The lower Courts have dismissed the suit with costs on the fact that it is barred by Article 113 of the Limitation Act as a suit for specific performance of a contract. It is no doubt true that Article 1×6 of the Limitation Act regarding contracts in writing registered does not apply to suits for specific performance of such contracts, but only to suits for compensation for the breach of them. It is, however, well settled that suits such as this for failure to pay money according to contract are to be regarded as suits for compensation for breach of contract and not as suits for specific performance – see Mitra’s Limitation Act, 4th ed., p. 941, and the authorities there cited. The lower Courts were, therefore, wrong in applying Article 113 of the Limitation Act to the present case. It is, however, further argued that the provisions above cited amount to a covenant for title and that the breach must be considered to have occurred as and from the date of the deed Exhibit A which in this case was more than six years before the institution of the ‘ suit. This is no doubt so, in the absence of a special contract – Dart on the Law of Vendors and Purchasers, Vol. II., p. 788 – but we think that in this case there was a special contract to indemnify the party as and when the deprivation took place. Under Article 116 of the Limitation Act, read with Article 83 of the Act, the plaintiff in the present case had six years from the date when he was actually damnified and the suit was within time.

2. The decrees of the lower Courts must be reversed and the suit remanded to the District Munsif for disposal according to law. Costs will abide the event. As regards the 3rd respondent, the appeal is not pressed and must be dismissed with costs.

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