Sauney Kotappa vs Venkata Narasimham Naidu

The only right of action to which the plaintiff on the allegations made in the plaint could be entitled is a right to recover damages for breach of

contract. The plaint certainly does not set out in terms that cause of action, for the plaintiff seeks to recover the money exacted from him under the

decree of the High Court with interest thereon and does not ask for damages. But all the necessary allegations are made in the plaint. The contract

and the breach of it are alleged, and the written statement shows clearly that the defendant understood what the claim against him was We think the

plaint must be read as sufficiently disclosing a cause of action. It cannot possibly be said that the defendant has been prejudiced by the omission to

ask specifically for damages. Then it is said that the suit is barred by limitation, because the breach was made more than throe years before the suit

was filed. The answer to this is that the undertaking of the defendant to withdraw his second appeal was embodied in the registered mortgage

instrument which he accepted from the plaintiff. The fact that the instrument is not signed by the defendant does not take the case out of the

operation of Article 116 of the Schedule to the Limitation Act. We, therefore, hold that the suit is not barred by limitation. It is unnecessary to

consider whether any cause of action would have accrued on the mere passing of the decree without any money being exacted under it. The

plaintiff is clearly not entitled to the whole amount of the claim. The damages suffered by him is the amount levied from him minus the amount due

by him under the mortgage with interest up to the date of the tender of the money (viz., the 5th September 1893), that tender having been refused.

We must reverse the decree of the Subordinate Judge and restore that of the District Munsil modifying it by substituting the sum of Rs. 1,092-3-

The defendant must also be directed to give up the mortgage instrument to the plaintiff.

The respondent must pay the costs here and in the court below on the Sum allowed.