S. D. KHARE, J. :- The question which has been referred for the consideration of this Full Bench is as follows:-

"On the facts of the present case which Article of the Limitation Act applies."

2. The facts of this case are very simple. The suit was for the recovery of Rs. 850 from the defendants. On 12th January, 1959, the plaintiff had taken the theka of fishery rights in a certain tank for the year 1959, and had paid the full theka money of Rs. 1,700. He did not find it possible to work the entire theka, and, therefore, he took the defendants as his partners. The shares of all the defendants separately defined, aggregated to one-half of the theka and therefore, they were required to pay half the theka money to the plaintiff. According to the allegations made in the plaint the time fixed for payment was upto 31st July, 1959. However, the finding of the learned Munsif was that the defendants had agreed to pay their share of the theka money by 31st January, 1959. The learned Munsif, applying Article 115 of the First Schedule to the Limitation Act held that the suit, which was instituted on 26th July, 1962, was barred by time.

3. The plaintiff preferred an appeal, and the learned Civil Judge, who heard the appeal, allowed it on the finding that Art. 120 of the First Schedule to the Limitation Act applied, and under that Article the limitation was six years. The learned Civil Judge neither confirmed nor disturbed the findings of fact arrived at by the learned Munsif regarding the date on which the money became payable.

4. The revision filed against the appellate Court judgment was heard by a learned single Judge of this Court. It was contended before him that the case of Town Area Committee, Rava v. Budh Sen, AIR 1962 All 438 relied upon by the learned Civil Judge, had not been correctly decided, because neither Art. 115 nor Art. 120 of the First Schedule to the Limitation Act could apply to the facts of the case and the suit should have been governed by Art. 113.

5. Article 120 is a residuary Article, and in case Art. 113 or Art. 115 of the First Schedule to the Indian Limitation Act could apply it is obvious that Art. 120 will not apply (vide Full Bench case of Zila Parishad v. Sm. Shanti Devi, AIR 1965 All 590).

6. Articles 113, 115 and 120 read as follows:

Description of suit. Period of limitatio n.

Time from which period begins To run.

113.For specific performance of contract.

Three years

The date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused.

115.For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided.

Three years

When the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.

120.Suit for which no period of limitation is provided elsewhere in this Schedule.

Six years.

When the right to sue accrues.

7. It has been contended by the learned counsel for the applicant that Art. 113 of the First Schedule to the Limitation Act should apply, as the claim is nothing but for specific performance of a contract.

8. In our opinion there is no force in this argument. It is true that there was a contract between the parties inasmuch as the plaintiff gave to the defendants one-half of the fishery rights in the tank on the condition that they would pay him half the theka money. The allegations made in the plaint show that the defendants had already worked out the theka in respect of their share of it. All that remained to be done was to pay the

proportionate theka money to the plaintiff. In such circumstances no suit for specific performance of contract could be filed: only a suit to enforce the agreement so far as it related to the payment of the proportionate theka money could be, and has been filed.

9. Th relevant portion of Section 12 of the Specific Relief Act (Act 1 of 1877) read