The main legal point established in the judgment is the determination of the cause of action for limitation in a suit for recovery of decretal dues, the applicability of Sec.24, Limitation Act, and the entitlement to interest as damages under Section 73, Contract Act.

Meredith, J.

1. This is a defendants second appeal in a suit for recovery of Rs. 300 and interest, by way of damages, in respect of realisation by the defendant of the decretal dues twice over in two rent suits. These rent suits were decreed in 1935. According to the plaintiffs case and the findings of the Courts below, the sum of Rs. 300 was paid out of Court in the year 1936 under a promise of certification, but in fact the payment was never certified, and execution for the full amount of the decrees was taken out in the year 1937. On 5.4.1937, the plaintiff made an application under Order 21, Rule 2, Civil P. C., for certification of the payment, but this-application was dismissed as barred by limitation under Article 174, Limitation Act, and also as it was held that payment had not been proved. There was an appeal, but the appeal also was dismissed. Subsequently in the execution proceedings the judgment-debtor had to pay over again, paying by instalments from 16-1-1940, onwards. The plaintiff waited for full three years before doing anything about it, and on 19.1-1943, filed the present suit. There were, however, a few days holidays prior to the 19th of January, and it is conceded that the suit was within time if limitation runs from 16-1-1940. The suit has been decreed for Rs. 300-and interest, cot at the rate claimed, but at 6 per cent. per annum from 16 1-1940.

2. Three points have been raised in appeal, first, that the suit was barred by res judicata owing to the dismissal of the application under Order 21, Rule 2, second, that the suit was barred by limitation, and third, that interest should not have been allowed as there was no contract for payment of interest or damages.

3. I shall take these points in turn. With regard to the first, reliance is placed on a number of cases of which it will suffice to cite Peary Mohan Mukherjee V/s. Ambica Churn Bandopadhya, 24 Cal. 900, wherein it was held that, though the previous suit failed for lack of notice, there was res judicata because the question of the merits, whether necessary or not, had also been decided and the matter was directly and substantially in issue in the previous litigation.

4. Similarly it is argued that the application under Order 21, Rule 2, was dismissed not only on the score of limitation, but also on the merits. Therefore, the matter of payment had been finally decided. It is not necessary to discuss the legal point involved because there is a short answer. It was for the defendant to establish the plea of res judicata set up by him. The final decision in the application under Order 21, Rule 2, was that of the appellate Court, and the defendant has not filed the judgment of the appellate Court, and we do not know whether the appellate Court decided on the merits or only on the score of limitation. The first contention, therefore, fails.

5. The second, that of limitation is one of some difficulties. It is well settled that a suit like the present is a suit for damages for breach of an implied contract by the decree-holder to get the payments certified and not to execute the decree. Indeed it is only in this light that such a suit has been held to be maintainable despite the provisions of Sec. 47, Civil P. C. This being so, the article of limitation must be Article 115, or possibly Article 97, Limitation Act. In the first case limitation is three years from the date of the breach, in the second three years from the failure of the consideration. My personal view is that Article 115 is applicable rather than Article 97. But it makes no difference. Limitation is three years, and the question is, what is the terminus a quo? When did the breach take place or when did the consideration fail? Put like this, I think there can be only one answer. The breach took place and the consideration failed as soon as the decree-holder did something inconsistent with the carrying out of the contract--something negativing its performance by him. That would be the da