Norman Macleod, C J

[1] The plaintiffs sued to obtain an order against the defendant enjoining him to make good the plaintiffs share by payment to plaintiffs of Rs. 9,000 and interest thereon after date of suit and costs. Plaintiff No. 2 filed suit No. 241 of 1903 against the defendant, his father and plaintiff No. 1 for partition and obtained a decree for partition in the Poona Court on the 15th of June 1905. Plaintiff No. 2 then filed a Darkhast No. 85 of 1907 for execution of that decree. A compromise was effected between plaintiffs Nos. 1 and 2 and the defendants. In pursuance of that compromise certain properties were allotted to plaintiffs Nos. 1 and 2 including a mortgage dated 12th December 1895 and executed by one Khanderao Amritrao Naik. Under the compromise plaintiffs Nos. 1 and 2 got a right to recover Rs. 3,000 including principal and interest on that mortgage. The plaintiffs sued the mortgagor in Suit No. 378 of 1910 but it was held that the consideration for the mortgage had been paid off so plaintiffs suit was dismissed with costs. The plaintiffs appealed to the High Court. The High Court dismissed the appeal on the 1st of July 191

4. The decree of the lower Court was in 191

2. Plaintiffs alleged that there had been fraud when the partition was effected, that the defendants knew perfectly well that this mortgage had been paid off. However in the trial Court it was proved to the satisfaction of the Judge that there had been no fraud, that it was purely a mutual mistake under which all the parties considered this mortgage a perfectly good asset and that the amount apparently due on it could be recovered from the mortgagor. On the authority of Davloba v. Rayagavda, (1883) P.J. 227 which was followed in Maruti v. Rama, (1895) I.L.R. 21 Bom. 333 he held that the defendant was liable to contribute to the loss to the extent of one-half and passed a decree in favour of the plaintiffs for Rs. 3,439 odd adding to the mortgage debt which the plaintiffs had failed to recover, the costs in both Courts in their suit against the mortgagor. No question of limitation was raised in the lower Court.

[2] In first appeal it has been contended that this suit is barred by limitation. It must be admitted that if Article 96 does not apply, then accepting the finding of the Court below that there had been no fraud, Article 120 must apply. But the appellant contends the plaintiffs had only three years within which to file the suit from the date when the mistake with regard to this mortgage became known to them. Clearly, the cause of action against the defendant was that there had been a mistake as regards this particular item, which was treated to be a valuable asset belonging to the family property. It was taken as representing Rs. 3,000 in the partition and it turned out unfortunately for the plaintiffs that there was no debt at all due to the mortgagor. Therefore, both parties were under a mutual mistake, and plaintiffs right to recover from the defendant his share of the loss caused by that mistake arises in equity, as has been held in the cases referred to above. Plaintiffs are, therefore, seeking for relief for the loss which they have incurred owing to mistake, and it appears to me, therefore, that Article 96 of the Indian Limitation Act must apply. But it is contended that time began to run, not from the date when the first Court held that the mortgage had been paid off, but from the date of the High Court s decree dismissing the appeal. That question was considered in a somewhat kindred case by the Privy Council in Hukumohand v. Pirthichand (1918) 21 Bom. L.R. 632, P.C. In that case the point was, when did time begin to run in a suit under Article

97. The money was paid upon an existing consideration which afterwards failed, and time began to run from the date of the failure. The same point was taken as was taken in this case. Their Lordships said at page 637 : As between these two decrees, that is to say, the decree of the first Court and the decree of the appellate Court, the view of both the lower Courts that the failure of the consideration was at the date of the first Court s decree was correct, for whatever may be the theory, under the Indian law an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal. Here the plaintiffs suit was dismissed and they then discovered by the decision of the Court that the mortgage had been paid off. It was open to them of course to appeal and to endeavour to get the decision of the first Court reversed. That would have been to their advantage if they succeeded, because even if they succeeded in the present case they could only recover half the loss. But it seems to me quite clear that the discovery of the mistake dated certainly from not later than the first Court s decree and time then began to run against the plaintiff. We have been referred to the else of Bassu Kuar v. Dhum Singh (1888) I.L.R. 11 All.

47. But there the High Court reversed the decree of the lower Court and it was only when that occurred that the cause of action arose. It appears to me, therefore, we must take it that time began to run against the plaintiff in 1912 and that this suit to recover from the defendant his share of the loss must be barred under Article 96 There is no hardship in the case, because even after the High Court dismissed the appeal in 1914, the plaintiffs still had a considerable time in which to file this suit.

[3] The appeal, therefore, I think, must be allowed and the plaintiffs suit dismissed.

[4] As this point was not taken in the Court below we make no order as to costs.

[5] The cross-objections are dismissed with costs.