JUDGMENT Chandrasekhara Menon, J. 1. The respondent sued for Rs. 12,800 as compensation for loss caused by, undisclosed attachment before judgment and subsequent court sale for a decree debt of a property, purchased by the respondent plaintiff from the defendant. The property comprised 12 cents of land and a building. It belonged to the defendant and was situated in Survey Nos. 53/1, 2 and 3 in Fort. Cochin. The sale price as per the sale deed which is dated 31st May 1964 was Rs. 17,000. The plaint proceeded on the basis that the defendant represented to the plaintiff company and assured it before the execution of the sale deed that the property was not subject to any encumbrance or charge except for a mortgage debt which ripened into a mortgage decree in O.S. No. 79 of 1961 in favour of the Chaldean Syrian Bank, Trichur, on the basis of a mortgage deed of 1957. The amount for the payment of that decree debt was Rs. 11,342 at the time of the sale. This amount out of the sale consideration was reserved with the plaintiff and the balance amount of Rs. 5,658 alone had been paid in cash. 2. In the document of sale the defendant had undertaken to indemnify the plaintiff company if it suffered any damage or loss due to any undisclosed encumbrance or impediment or other defect in the title. In pursuance of the sale the plaintiff took possession of the property. Nine months after the sale the property concerned was sold for another money decree to an auction purchaser decree holder on the strength of undisclosed attachment before judgment in respect of the property. The sale was in execution of the decree in O.S. No. 72 of 1959 of the Ernakulam Sub Court. It would appear chat execution proceedings were pending even before the execution of the sale deed in favour of the plaintiff company. It is the plaintiff's case that the defendant fully aware of the fact in regard to this court proceeding fraudulently suppressed the information from the plaintiff company. It might be stated here that the respondent company (plaintiff) subsequently purchased the right of the auction purchaser in O.S. No. 72 of 1959. It is the plaintiff's case that the defendant fully aware of the fact in regard to this court proceeding fraudulently suppressed the information from the plaintiff company. It might be stated here that the respondent company (plaintiff) subsequently purchased the right of the auction purchaser in O.S. No. 72 of 1959. The plaint avers that to safeguard the interest of the plaintiff company it became necessary to negotiate with the decree holder auction purchaser in O.S. No. 72 of 1959 and the auction purchaser's right was taken for a sum of Rs. 9,500 on 10th June 1966 by taking a sale deed, the stamp paper for which itself came to Rs. 855. It is contended that inclusive of registration expenses, legal charges, brokerage, etc., a total sum of Rs. 2,500 was expended by the plaintiff company and the suit is hence brought for Rs. 12,855 claiming 6 per cent future interest on the same. 3. In the written statement filed by the defendant he took up the plea that the attachment before the judgment was obtained by the decree holder in O.S. No. 72 of 1959 of the Ernakulam Sub Court without proper notice to the defendant and the attachment was really invalid. A contract of sale, it is contended for by the defendant, was entered into under a bona fide impression that there was no attachment before judgment. The notice of attachment was subsequently found returned saying that the defendant refused to accept service of notice. When the decree holder had begun execution of the decree in the aforesaid matter the defendant requested the plaintiff to oppose the sale for which there were several legal grounds. It is the defendant's case that though plaintiff made an application for setting aside the sale, it was not pursued and the plaintiff company purchased the decree holder's right. According to him he had requested the plaintiff to reconvey the property to him on payment of Rs. 17,000 and expenses and the plaintiff refused to do so in order to secure the property at the rather very reduced price of Rs. 17,000. According to the defendant the plaintiff's loss could have been only the cash consideration paid. Even if the plaintiff did not purchase the property from the decree holder, he could have very well claimed right of subrogation, he having paid off the mortgage debt in O.S. No. 79 of 1961. 17,000. According to the defendant the plaintiff's loss could have been only the cash consideration paid. Even if the plaintiff did not purchase the property from the decree holder, he could have very well claimed right of subrogation, he having paid off the mortgage debt in O.S. No. 79 of 1961. The defendant asserts that even now he was prepared to pay back the plaintiff the amount of Rs. 17,000 and all lawful expenses if he will reconvey the property to the defendant. By amendment of the written statement the defendant took up the contention that the suit is barred by limitation. 4. On an appreciation of the evidence in the case the court below found that the plaintiff is entitled to an award of damages only to the extent of Rs. 5,650. This amount represented the part of the consideration which was paid in ready cash to the defendant, the balance Rs. 11,342 being reserved with the plaintiff for paying the mortgage debt in O.S. No. 79 of 1961, which had accordingly been paid by the plaintiff. The court below said that admittedly there is the right of subrogation by the plaintiff and he can claim that amount of Rs. 11,342 from the auction purchaser. The plaintiff could very well file a suit and obtain a decree for sale of the property for the said amount and interest and costs. Therefore the court below finds that by the defect in title of the defendant in respect of the property the plaintiff could be said to have lost only Rs. 5,658. The amount paid by the plaintiff for the repurchase of the property as per Ext. P-3 from the auction purchaser which came to Rs. 9,500 cannot be claimed as damages in the circumstances. The court below negatived the plea of limitation put forward by the defendant. The lower court has proceeded on the basis that the suit is one for breach of the covenant for quiet possession and the starting point of limitation is the date of dispossession. It is in these circumstances that the defendant has come up in appeal to this court. 5. The main contention that was urged before us by Sri N. K. Varkey, learned counsel for the appellant, was that the lower court went wrong in holding that the suit is not barred by limitation. It is in these circumstances that the defendant has come up in appeal to this court. 5. The main contention that was urged before us by Sri N. K. Varkey, learned counsel for the appellant, was that the lower court went wrong in holding that the suit is not barred by limitation. Before dealing with this question, we might state that on behalf of the defendant no material had been placed before us which could induce us to differ from the lower court in the matter of appreciation of the evidence. Therefore the finding entered as regards the facts in issue between the parties by the learned Subordinate Judge has to be upheld. 6. We may now consider the question of limitation. The suit was filed on 1st November 1968. The court auction in O.S. No. 72 of 1959 was on 18th May 1965. The property was delivered over to the auction purchaser on 11th April 1966. On these facts there is no doubt that the Limitation Act (XXXVI of .1963), (hereinafter referred to as the Act) is the statute applicable in the case. By notification of the Central Government, dated 29th October 1963 published in the Official Gazette dated 9th November 1963 as contemplated in S.1(3) of the Act, the Limitation Act of 1963 came into force with effect from 1st January 1964. By Art.55 scheduled to the Act for compensation for the breach of any contract, express or implied not specially provided for, three years period of limitation is given, the time from which the period begins to run being "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". This Article replaces Art.115 and 116 of the Limitation Act IX of 1908. Art.115 of this Act related to suits for compensation for the breach of any contract express or implied, not in writing registered and not specifically provided for otherwise and it prescribed a three years' period of limitation. Art.116 dealt with suits for compensation for the breach of a contract in writing registered and provided a six years' period of limitation. Art.115 of this Act related to suits for compensation for the breach of any contract express or implied, not in writing registered and not specifically provided for otherwise and it prescribed a three years' period of limitation. Art.116 dealt with suits for compensation for the breach of a contract in writing registered and provided a six years' period of limitation. The differences between the two Article were: (1) While Art.116 applied only to contracts in writing registered, Art.115 applied to all oral contracts, contracts in writing but not registered, and to contracts in writing registered where the registration was not according to the law in force in India for registration. In other words, Art.115 was a general residuary Article which covered cases of contracts, express or implied, oral or written, but not registered. (2) While Art.116 applied to all contracts in writing registered, Art.115 applied only to contracts not otherwise specially provided for. (3) While Art.116 gave six years limitation, Art.115 provided only three years. The idea underlying a larger period of limitation under Art.116 was presumably to encourage registration of agreements both because a registered instrument will have a higher evidentiary value and because registration will bring more revenue to the public exchequer. It was felt that there was little justification for providing a larger period merely on the ground of registration. Thus the present Art.55 provides a uniform period of limitation in all cases. 7. Mr. Varkey did not contend that this Article is not the relevant Article that is applicable. His contention was that the breach of the contract occurred on the date of the sale, namely, 18th May 1965. Then on 18th May 1963 the period of limitation would have expired. The suit is filed only on 1st November 1968. On the other hand, the contention on behalf of the respondent was that the starling point of limitation occurred only on the date of dispossession of the plaintiff in pursuance to the sale. The date of dispossession as stated earlier was on 11th April 1966. The suit has been filed within three years from that date and therefore it is urged by the learned counsel for the respondent that the suit is well within the period of limitation. The date of dispossession as stated earlier was on 11th April 1966. The suit has been filed within three years from that date and therefore it is urged by the learned counsel for the respondent that the suit is well within the period of limitation. After careful consideration of the relevant provisions in the Act and the case law on the matter we are in agreement with the contention of the respondent in the matter. According to use the suit is not barred by limitation. 8. Justice Seshagiri Ayyar in Subbaraya Reddiar v. Rajagopala Reddiar (ILR 38 Madras 887) had occasion to consider a similar question. In that case who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B, got a decree and obtained possession thereof in execution. The learned Judge said that B's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and that the Article applicable was Art.97 of the Limitation Act of 1938. Art.97 of the Act referred to, corresponds to present Art.47 which relates to suits for money paid upon an existing consideration which afterwards fails. The period of limitation in such suits is three years from the date of the failure. Seshagiri Ayyar, J. said in that case: - "On the second question as to when the cause of action for damages arose, a very large number of cases were quoted before me. These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale and; (c) where though the tide is known to be imperfect, the contract is in part carried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the date of the sale. That is Mr. Justice Bakswell's view in Ramanath Iyer v. Ozhapoor Pathivisseri Raman Nambudiripad [(1913) 14 MLT 524]; and I do not think Mr. In the first class of cases, the starting point of limitation will be the date of the sale. That is Mr. Justice Bakswell's view in Ramanath Iyer v. Ozhapoor Pathivisseri Raman Nambudiripad [(1913) 14 MLT 524]; and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Human Kamata v. Hanuman Mandur [(1892) ILR 19 Cal., 123] and in Bassu Kuar v. Dhum Singh [(1889) ILR 11 All. 47] are authorities for this position. In the third class of cases also it is said that the cause of action will arise only on the disturbance of possession. No question of concurrence of third parties either to avoid or perfect the title arises in this case. The most recent authority for this proposition is Narsing Shivakas Shivbakas v. Pachu Rambakas [(1913) ILR 37 Bora. 538]. Mr. Justice Miller in Ramanatha Iyer v. Ozhapoor Pathirisseri Raman Nambudiripad gives a qualified assent to the proposition laid down in that case". (Underlining is ours) 9. This decision was referred to in Kashirao v. Zabu (AIR 1932 Nagpur 5 (FB)) Subhedar, A. J. C. said in that case: - "In both voidable and void sales if the vendor places the vendee in possession of the property sold the principal object of the sale, that is possession and enjoyment of property, is secured to the vendee and therefore until these are disturbed by the rightful owner it could not logically be said that there is a breach of contract within the meaning of Art.116 of the limitation schedule in a voidable transaction at the time of disturbance of possession by the rightful owner and in the case of a void transaction at the time of the execution of conveyance. In both the cases where possession is delivered to the vendee, the sale. In both the cases where possession is delivered to the vendee, the sale. for all practical purposes, remains good until it is avoided by the rightful owner. Cause of action to claim damages for breach of contract cannot arise in either voidable or void sales to a vendee if he is placed in possession of the property sold, before he is evicted by the rightful owner for the very obvious reason that he in fact suffers no damages till then. It follows then that in a void transaction the limitation period should not run against the vendee, who has been placed in possession of the property under the contract of sale, to claim damages from the vendor for breach of contract, at any time earlier than it would start running under similar circumstances in the case of a voidable sale". In his concurring judgment Niyogi, A. J.C. said: - "When a vendee, whose possession is disturbed by the rightful claimant, sues his vendor for compensation, his claim, in substance, is one founded on the breach of the covenant for quiet enjoyment. The covenant for title in a generic sense includes a covenant for quiet possession, but in its special sense means only a covenant as to the vendor's right to convey. Confusion arises from laxity of expression ordinarily used in the pleadings, viz., to describe a breach of what is really a covenant for quiet enjoyment as one for title. The usual covenants for title are: for right to convey for quiet enjoyment; for freedom from encumbrances; and for further assurance. Of these the covenant for right to convey is a covenant for title and the covenant for quiet enjoyment is a covenant relating to possession. The distinction is material since it affects both the date when the covenants is broken and the measure of damages. A covenant for title is a assurance to the purchaser that the grantor has the very estate in quality and quantity which he purports to convey, whereas the covenant for quiet enjoyment is a future covenant: see 25 Halsbury, pp. 462-466. A covenant for title is a assurance to the purchaser that the grantor has the very estate in quality and quantity which he purports to convey, whereas the covenant for quiet enjoyment is a future covenant: see 25 Halsbury, pp. 462-466. The law as to limitation of actions in respect of these two cases is succinctly laid down in 19 Halsbury, 78 in these terms: 'Where on the sale of the property the vendor covenants that he has a good title to transfer, while in fact he has not a good title, the breach of the covenant is at the time of the sale and there is no continuing breach; but if the vendor covenants for quiet enjoyment, there is no breach of that covenant till there is an interference with the enjoyment of the purchaser or those claiming through him'. it is obvious that when the vendee obtains corporal possession of the property purchased by him from a vendor who may or may not have a sound and unfettered right to convey, and his possession is disturbed, the cause of action for damages arises on the date of such disturbance. Art.116, Schedule 1, Limitation Act, is specifically enacted respecting claims for compensation for breach of a contract in writing and registered. In Tricomdas Cooverjee Bhoja v. Gopinath Jiu Thakur ( AIR 1916 PC 182 ) their Lordships of the Privy Council affirmed that Art.116 is a special provision which is intended to apply to all contracts in writing and registered. On the authority of this dictum, the Courts in India have applied Art.116 to cases of breaches of covenants, express or implied, for title incorporated in registered instruments: see Multanmal Jayaram v. Budhumal Kevalchand (AIR 1921 Bom. 252) Ganapa Putta v. Hammad Saiba (AIR 1925 Bom. 440) Md. Siddiq v. Md. Nuh (AIR 1930 All. 771) and see also Ratanbai Shaligram v. Ghasiram Gungabisan (AIR 1932 Bom. 36). There may be express covenants for title and quiet possession contained in regularly drawn up instruments of sale. But even if they are absent such covenants ate implied by law. By virtue of S.55(2), Transfer of Property Act, 1882 every sale necessarily imports a covenant for title and quiet enjoyment and this covenant is not merely personal but runs with ' the land. But even if they are absent such covenants ate implied by law. By virtue of S.55(2), Transfer of Property Act, 1882 every sale necessarily imports a covenant for title and quiet enjoyment and this covenant is not merely personal but runs with ' the land. Under that enactment, the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. 'The right to enjoy possession is an incident of ownership and as such, an interest in the property.' When the vendor, in pursuance of the conveyance, delivers actual physical possession to the vendee the later acquires the same. The vendor's covenant as to this interest must remain unaffected so long as the vendee is in the quiet enjoyment of possession. This covenant as to quiet enjoyment being a future covenant cannot obviously be broken on the date of the sale, notwithstanding that the vendor has no right to convey. The breach of that covenant can occur only on the disturbance of the vandee's possession. Since the vendor's covenant is two fold, viz., for right to convey and for quiet enjoyment, the vendee will have two distinct causes of action in the event of the breach. If the vendor has no title on the date of the conveyance, the breach of the covenant certainly occurs at the time of the sale, and if the remedy is not sought within the statutory period, the cause of action accruing from that breach will alone lapse. It cannot destroy any remedy to which the vendee may be entitled by season of interference with his possession." This decision was quoted with approval in ML Saraswathi Bai v. Madhukar (AIR (37) 1950 Nagpur 229) by Justice Mudhalkar. Therein it was said that if it was found that a vendor was under a disability to convey the property, the implied covenant under S.55(2) of the Transfer of Property Act would come in. While it is true that express covenants of title override and do away with the effect of all implied covenants, it is equally true that an implied covenant cannot be got rid of except by clear and unambiguous expressions. An express covenant cannot exclude an implied covenant unless it relates to the same subject matter. While it is true that express covenants of title override and do away with the effect of all implied covenants, it is equally true that an implied covenant cannot be got rid of except by clear and unambiguous expressions. An express covenant cannot exclude an implied covenant unless it relates to the same subject matter. The court also said in that case that where a person being incompetent to transfer the property receives consideration from the vendee and enters into an agreement or contract which is void from its inception or is subsequently discovered to be void under S.65, Contract Act, he is liable to refund back the consideration which has been received. If Art.97 of the Limitation Act of 1908 is a proper Article in such cases limitation must be deemed to have commenced from the date of the failure of consideration (the date of dispossession). If Art.116 of the Limitation Act is applicable then also the period of limitation would commence from the date of dispossession. 10. We may also refer to the decision of the Bombay High Court reported in Gulabchand Daulatram v. Suryajirao Ganpatrao (AIR (37) 1950 Bombay 401). The facts of the case were this: - "One G being unaware of the statutory disability imposed upon him by proviso 3 to S.40, Bombay Court of Wards Act [I (i) of 1905], sold certain property to the plaintiff under a registered sale deed, purporting to convey an absolute interest in the property to the vendee. On G's death his son the defendant, brought a suit against the plaintiff for possession of the property on the ground that the sale was void beyond the lifetime of G and obtained a decree. The plaintiff having been disposed under the decree filed a suit against the defendant claiming damages for breach of the covenant for title and quiet enjoyment. The plaintiff having been disposed under the decree filed a suit against the defendant claiming damages for breach of the covenant for title and quiet enjoyment. It was contended that the plaintiff should have prayed for refund of purchase money on the footing that the consideration for the sale failed on the death of G and if such a claim had been made the suit would have been barred under Art.63." After referring to the relevant decisions on the point, Justice Shah, speaking on behalf of the Division Bench of the Bombay High Court said:- "Now, it is true that the title of the plaintiff to the property terminated on the death of Ganpatrao, but if in the case of a suit filed for compensation for breach of a covenant for quiet enjoyment under a sale, which was void or voidable, the period of limitation commences to run from the date of dispossession, it is difficult to appreciate any ground on which a different rule should apply to a case in which compensation for breach of a covenant for quiet enjoyment is claimed where the sale was good until a certain event happened, and on the happening of that event, the sale become void. In my view, the consenses of judicial opinion is consistent with the essential nature of the covenant of title and quiet enjoyment. A covenant for title and quite enjoyment involves a right to undisturbed possession and this covenant remains effective so long as the vendee is in quiet enjoyment or possession. The covenant becomes enforceable in case there is obstruction or dispossession and cannot obviously be broken on the date either of the sale or the happening of the future event, which terminates the title of the vendee. A breach of the covenant can occur only on the disturbance of the vendee's possession. So long as the vendee remains in possession, he suffers no loss which would sustain an action for damages for breach of the covenant. In my view, therefore, the lower Courts were right in holding that the suit was within time. It is difficult to appreciate the argument that the covenant for quiet enjoyment came to an end as the title which the vendor purported to transfer came to an end. In my view, therefore, the lower Courts were right in holding that the suit was within time. It is difficult to appreciate the argument that the covenant for quiet enjoyment came to an end as the title which the vendor purported to transfer came to an end. The covenant was obviously not a personal covenant, and was not expressly or impliedly limited in its duration to the lifetime of the vendor; and it would indeed be a startling result of the incident of the covenant, if it was to be extinguished precisely at the moment when the necessity for the protection afforded by at arises." It will be useful in this connection to refer to a Division Bench decision of this court reported in Sayu Mohammed Abdulla v. Neelakantan Krishnan ( 1957 KLT 911 ). There in respect of a sale of land where there was an express covenant of indemnity, the cause of action in respect of a breach of that covenant was said to arise when the vendee was dispossessed. The Article applicable was held to be Art.116 read with Art.83 of the Limitation Act of 1908 in the light of the express covenant and the limitation will run only from the date of disturbance of possession. We might state here that there is no corresponding Article to Art.83 of the old Limitation Act in the present Act. 11. Mr. Varkey referred a Division Bench decision of the Madras High Court in Mt. Bhavani v. Anantha Kanthi and others (AIR 1917 Madras 874). There it had been held that a suit for damages based on a contract to indemnify the plaintiff against loss of possession it is not necessary for the plaintiff to prove that possession had actually been lost. The sale of the property in auction at the instance of a decree-creditor of the promisor and the consequent impairment of title constitute valid and sufficient cause of action. Where the promisee's title is lost, he suffers nonetheless because he has yet sustained no practical inconvenience or has not had occasion to sell the property and estimate the damage sustained with reference to any actual diminution in the price obtainable. The necessary facts of that case are stated in paragraph 1 of the judgment. They are: "Plaintiff's husband, now deceased, started a Kuri fund and in 1892 executed Ext. The necessary facts of that case are stated in paragraph 1 of the judgment. They are: "Plaintiff's husband, now deceased, started a Kuri fund and in 1892 executed Ext. R to the members, pledging property as security for the amount which would be payable to them. On his death plaintiff succeeded to his estate, and her father, as her guardian, in 1893 took steps to transfer the management of the fund to defendant 1 by a Power of Attorney and obtained from him and his brothers an indemnity bond, Ext. B, with the plaint property as security for an amount not exceeding Rs. 2,500 against any damage resulting to plaintiff and her property, including that bond, Ext. R. Two members of the fund afterwards obtained decrees on Ext. R against plaintiff, defendant 1 being a party, and (neither decree holder being a party to the other decree) both in succession brought the property to sale, the purchasers being different individuals. Plaintiffs has now sued defendant 1 and others representing the other executants of Ext. B to recover Rs. 2,500 by sale of the properties specified therein as security. The question is whether the lower Courts were right in deciding that her suit was premature." There in respect of the plaintiff's claim in respect of damage to her title, the defendants argued that she has not yet sustained any loss and that subject to retaining possession she will never do so. The Court said in respect of this argument - "For two Court sales have been held and have not been set aside; and though neither purchaser has yet obtained possession, there is till time for one or the other to do so. Plaintiff's title accordingly has been lost and she has suffered nonetheless because so far she has sustained no practical inconvenience and because she has not had occasion to sell the property and cannot yet estimate the damage sustained with reference to any actual diminution in the price obtainable. Kingdown v. Motile (4 M and S 53) is in point though it was case of breach of covenant for title; and it is clear authority since in the particular circumstances proof of special damage was necessary. Such damage was held established on the ground that the title being impaired the plaintiff would not be able to dispose of the estate. Such damage was held established on the ground that the title being impaired the plaintiff would not be able to dispose of the estate. Plaintiff's suit therefore so far as it is founded on detriment to her title, cannot be held premature. The lower Court's decisions are therefore set aside and the District Munsiff is directed to re-admit the suit and rehear it in the light of the forgoing remarks with particular reference to plaintiff's right to damages on account of the loss of her title." We do not think on the facts of the case, the principles laid down in this decision is applicable here. We, therefore, hold that the lower court was quiet correct in its decision on the question of limitation. The suit is clearly within time as the cause of action for the suit has arisen on the date of dispossession of the plaintiff. Therefore we dismiss the appeal with costs.