A breach of contract occurred due to the defendant's failure to fulfill their obligations.

P.B.GAJENDRAGADKAB, J.

(1) THIS appeal arises from a suit filed by respondent 1 Durga Prosad Chamaria against respondent 2 the heirs of John Carapiet Galstaun and others in which he sought to recover Rs. 4.00 p 64,213-5-3 on the mortgaes in suit. He had prayed for a preliminary mortgage decree according to 0. XXXIV, r. 4 of the Code of Civil Procedure and had asked for the appointment of a receiver in that behalf. The said mortgages were created by delivery of documents of title to immovable properties by the mortgagor John Carapiet Galstaun who died pending the suit. The properties mortgaged consisted of three items all of which are situated in Calcutta. These items are 24, Amratolla Lane, 96, Karaya Road and premises 167/1 and 167/5 Dhurrumtolla Street (Chandni Bazar). In the present appeal we are concerned with premises 167/1. Respondent 1s case was that he had advanced several amounts on seven different occasions to the mortgagor between 2/08/1926, and 27/11/1931. According to the terms of the transaction no specific time for payment of the mortgage dues had been fixed, and it was agreed that the monies advanced would become due and be repaid on demand being actually made by the mortgagee. With this plea we are not concerned in the present appeal. It was further pleaded by the mortgagee that the mortgagor had acknowledged his liability of the mortgagees claim by letters of 5/03/1932, and 17/02/1943, which were signed by him. It is on the strength of these acknowledgments that the mortgagee purported to bring his claim within time the suit having been filed on 18/05/1944.

(2) PENDING the suit the appellant was added as a party defendant on 23/08/1944. By his application made by respondent 1 in that behalf it was alleged that the appellant had become the auction purchaser of premises 167/1 at a sale held by the Sheriff of Calcutta on 3/05/1944, in execution of a decree passed in Suit No. 2356 of 1931 by the Calcutta High court with notice of mortgage in favour of respondent 1. Since the said sale had been confirmed on 6/07/1944, the appellant bad become a necessary party to the suit. That is how the appellant became a party to the proceedings and was interested like the mortgagor in disputing the validity of the claim made by respondent.

(3) THE principal issue which arose between the parties in the suit was one of limitation. It was not seriously disputed that the letter written by the mortgagor on 17/02/1943, amounted to an acknowledgment and it helped to bring within time respondent 1s claim in respect of the last advance of Rs. 2,500.00 made on 27/11/1931. Respondent 1s case that the earlier letter of 5/03/1932, amounted to an acknowledgment was, however, seriously disputed by the appellant. If this letter is held to amount to a valid acknowledgment two items of consideration pleaded by respondent 1 would be within time; they are Rs. 20,000.00 and Rs. 35,000.00 advanced on the same day , 10/09/1926. Mr. Justice Banerjee, who tried the suit on the Original Side of the Calcutta High court, held that the letter in question did not amount to an acknowledgment, and so he found that only the last item of Rs. 2,500.00 was in time. In the result he passed a decree for Rs. 5,000.00 only in favour of respondent 1.

(4) THEN respondent 1 took the dispute before the court of Appeal in the Calcutta High court. The court of Appeal has upheld the case made out by respondent 1 in regard to the acknowledgment based on the letter of 5/03/1932, and in consequence it has been held that the principal amounts due to respondent 1 are Rs. 55,000.00 and Rs. 2,500.00, and at the rate of interest payable thereon at 8% simple, the total amount payable being subject to the maximum allowable under the Money-lenders Act. In accordance with these findings a preliminary decree has been drawn. It is this decree which is challenged before us by the appellant who has brought his appeal to this court with a certificate issued by t