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Judgment
We think that the Subordinate Judge was Wrong in holding that the suit was barred under Article 97, Schedule ii of the Limitation Act. The
claim is for money, but on a usufructuary mortgage, the cause of action being the failure of the mortgagor to secure the mortgagee in possession.
The liability to secure the mortgagee in possession or in default, to repay the mortgage money, is not a liability arising under the common law on the
ground of failure of consideration, but is a liability imposed by Section 68 of the Transfer of Property Act. If this liability be taken to be one arising
under a covenant implied by law as incidental to the mortgage contract (which was in writing and registered), Article 116 of the Limitation Act
would apply. Otherwise, the appropriate Article is 120, the case not being otherwise provided for. In either view, the suit is not barred since it was
brought within six years from the time when the cause of action accrued. The ease of Sawaba Khandapa v. Abaji Jotirav, ILR 11 B., 475is
distinguishable from the present by the fact that when it was decided, the Transfer of Property Act was not in force in Bombay, We, therefore,
reverse the decree of the lower Court and remand the suit for disposal on the merits.
Costs will abide and follow the result.