JUDGMENT

1. This is a defendant's appeal against the decree dated 11th November 1932 of the learned Additional Subordinate Judge of Gonda reversing the decree dated 30th November 1931, of the learned Munsif of that place. It arises out of a suit based on a mortgage dated 17th November 1917. This mortgage was executed by Shambhu Dat, defendant 1, and his brother, Tajeshwari Dat, who was represented in the litigation by his two sons, defendants 2 and 3, in favour of Ramphal, the predecessor-intitle of the plaintiffs. The mortgaged property consisted of Borne joint ancestral property of the family and of a 9 pies share in respect of which a decree for pre-emption had been obtained by Shambhu Dat. The suit was contested by defendants 2 and 3 on the ground that the mortgage was invalid and not binding on them. Both the lower Courts have found that the mortgage, in so far as it related to the joint family property, was illegal and invalid. As regards the mortgage, in so far as it related to the 9 pies share, it is common ground that ultimately Shambhu Dat's claim for pre-emption was unsuccessful and he lost the property.

2. In the course of oral pleadings it was admitted by the plaintiffs that the preemption money which had been deposited by Shambhu Dat had been withdrawn by him from Court, though it was pleaded that he had utilized the money in payment of certain prior debts. Both the lower Courts are also agreed in finding that the mortgage in suit was not executed for any legal necessity or for payment of any ancestral debt. Thus both the lower Courts are in agreement, and the finding is not questioned before as that the mortgage has failed completely both as regards the joint ancestral property as well as the other property which Shambhu Dat claimed by right of pre-emption. This being the position the plaintiffs claimed a money decree for the amount of mortgage money against the mortgagor defendant 1 personally. This claim was disallowed by the trial Court, but has been allowed by the learned Additional Subordinate Judge.

3. The only contention urged in appeal is that the plaintiffs claim for a personal decree was barred by time. The learned Counsel for the respondents in supporting the claim has relied on Section 68, T.P. Act. The question then arises, whether the claim treated as such was within time. In Lalta Singh v. Mathura Upadhia, 1931 Oudh 5, it was held by one of us that a suit under the provisions of Section 68, T.P. Act, must be governed either by Article 116 or by Article 120, Lim. Act, and the period of limitation for such a suit is six years from the time when the cause of action arises. The cause of action in the present suit clearly arose at the time when the mortgagor lost the 9 pies share which resulted in the diminution of the mortgage security. It appears from the oral-pleadings that Shambhu Dat lost this property soon after the execution of the mortgage deed in suit. The learned Counsel for the respondents is unable to state the date of the final decision in the pre-emption suit. Thus there being no evidence that the mortgagee lost his security within six years of the institution of the suit, his claim for a personal decree based on the provisions of Section 68, T.P. Act, must fail. Reference was also made to Article 97, Lim. Act, and it was contended on behalf of the respondents that under this article, limitation should run only from the date of the failure. Assuming that the article applies, we have no doubt that the failure of consideration took place at the time when the mortgagor lost the nine pies share. Thus in any case the present suit not having been shown to have been instituted within six years of the loss of the mortgaged property must be held to be barred by time. Stress was also laid upon the fact that the plaintiffs did not become aware of the loss of the preemption unit until the filing of the written statement in the present suit. There is no evidence to prove this. On the contrary the oral