1. The decree of the Subordinate Judge is right. The questions argued before us for the appellants are–(1) that the suit is barred by Section 43 of the Code of Civil Procedure, and (2) that it is barred by limitation.
2. The defendant agreed to convey certain property belonging to him and his son to the plaintiff. Disputes having arisen before the conveyance was executed, plaintiff sued for specific performance and got a decree, in pursuance of which the price was fully paid, and a conveyance was executed. Plaintiff not having been given possession, sued for possession. It was then found that the sale did not bind the son’s interest in the property, and that though the plaintiff was entitled to possession of the father’s share, a division ought not to be effected on the ground of the inconvenience attending the division of the house. Plaintiff was awarded the value of the defendant’s share, and the present suit is do recover the balance of the price paid, on the ground of failure of consideration to the extent of the son’s share.
3. It is contended by the appellant that the suit should be regarded as one for damages for breach of the contract to convey, and that, if so, plaintiff should have sued for the damages as an alternative relief in the suit for specific performance and that Section 43 of the Code of Civil Procedure is therefore a bar to the present suit. The contract to sell having been specifically enforced no question as to its breach arises, and the suit is really one for recovery of money, consideration for which has failed, as stated above. The cause of action, therefore, in this suit is entirely different from that in the suit for specific performance and Section 43 of the Code of Civil Procedure has no application.
4. As to the question of limitation the Privy Council case of Hanuman Kamut v. Hanuman Mandur L.R. 18 I.A. 158 : I.L.R. 19 Calc. 123. is a clear authority against the appellant. The failure of consideration must be taken to have occurred when it was found in the suit for possession that the plaintiff was not entitled to recover the son’s share. The present suit is within three years from that date and is therefore within time under Article 97, Schedule II, of the Limitation Act.
5. We dismiss the second appeal with costs.