John Beaumont, C.J.
1. This is an appeal from the First Class Subordinate Judge of Karwar. The plaintiff sued the Secretary of State for India in Council, that is, in substance, the Local Government, for damages for the wrongful sale and seizure of goods and cattle belonging to the plaintiff, and the question at issue arises in this way.
2. In 1929 the Collector of Kanara executed a lease in favour of the plaintiff for four years of certain lands on the terms that the plaintiff should bring the lands into cultivation during the term. In order to bring the lands into cultivation the plaintiff on September 8, 1930, borrowed a sum of Rs. 2,500 from Government under the provisions of the Land Improvement Loans Act of 1883, and the plaintiff's brother acted as his surety for the loan. On April 29, 1934, the Collector seized certain goods of the plaintiff, including wire fencing on the land, and removed these goods to his own custody. The plaintiff being in difficulties about repaying the loan applied in June, 1934, to the Collector to be granted a permanent tenancy, which he could dispose of, and eventually the plaintiff secured a man named Harite, who agreed to take over the plaintiff's interest in the land and also to take over his obligation for the loan, and the plaintiff and Harite wrote to the Mahalkari of Mundgod, a letter dated July 26, 1934, signed by both of them, which is exhibit 28. The plaintiff says:
Today I have relinquished all my malki rights over these survey Nos. in favour of Mr. N.R. Harite of Hubli. As he is willing to pay to Government the amount of tagai taken by me for wire fencing, I request that the khata of the lands in both the villages standing: in my name be cancelled and be now made in the name of N.R. Harite.
3. Then Harite writes:
I am willing to get all the lands entered in my khata and also to execute a new karar regarding the tagai amount due from the said Mr. Kalbag as already stated above by Mr. Kalbag and I bind myself to do so. Mr. D.S. Kalbag who stood to Mr. Shivarao (i.e. the plaintiff) for the said tagai loan is willing to stand surety for me even though the lands change possession.
4. It seems to me that that is a perfectly plain offer to Government made by the plaintiff and the suggested transferee Harite, under which Harite was to take over the plaintiff's interest in the land and was to undertake to discharge his liability for the tagai loan, which is, the loan raised under the Act of 1883. The Mahalkari made a report to the Collector of Kanara for leave to accept Harite's offer, and the Collector on August 6, 1934, returned the report to the Mahalkari saying 'The loan will be better secured after the transfer to a solvent man. The lands will be transferred subject to the liability to pay the tagai. So the Mahalkari's terms are accepted.' That, to my mind, shows quite clearly that the Collector appreciated that the loan was to be transferred to Harite; and he approved of that proposal since, Harite being solvent, the loan would then be better secured. It is to be observed also that under the fourth paragraph of that report of the Mahalkari it is stated: 'Necessary note that the tagai dues are hereafter to be recovered from Mr. Harite will be made on the tagai bond.' So I have no doubt that the Collector understood that the loan was to be transferred to Mr. Harite. However, that is a matter between him and his own officer. The important thing is that on August 9, 1934, the Mahalkari wrote to Mr. Harite as follows: 'Mr. Harite is informed in writing that his terms have been accepted by the Collector.' It seems to me, therefore, that on that date, namely, August 9, 1934, Harite's offer to take ever the liability for this tagai loan was accepted by the Collector, and as a necessary result of that the plaintiff's liability under his contract to pay the loan was discharged. That is the effect of Section 62 of the Indian Contract Act, which provides that if the parties to a contract agree to substitute a new contract for it, the original contract need not be performed. In my opinion, it is clear in this case that the Government, the plaintiff and Harite agreed to substitute Harite's liability for the plaintiff's liability, and in consequence the plaintiff's original liability was discharged, and it follows from that that the Collector should have returned to the plaintiff the goods which he had seized in order to ensure the fulfillment of the plaintiff's contract. The plaintiff's contract being at an end, the goods should have been returned. However, that was not done. Harite on December 27, 1934, paid Rs. 1,000 towards the tagai loan, and the attachment on part of the plaintiff's goods was discharged. On January 21, 1935, the land was transferred to Harite, and on April 13, the plaintiff applied to the Collector to raise the whole attachment. That, however, was never done, and subsequently other goods of the plaintiff were seized, and various goods such as wire fencing which had been purchased by the plaintiff out of the loan and some of his cattle were sold by the Collector to discharge his tagai loan. In my opinion, that sale was wholly illegal. The contract of the plaintiff to discharge the loan had come to an end in August, 1934, and thereafter the plaintiff's goods were not liable to attachment.
5. The learned Subordinate Judge held that the effect of the arrangement was merely to make Harite a surety for the plaintiff, but I am clearly of opinion on the documents that that was not so. The mere fact that in exhibit 28 it is stated that the old surety was to continue as surety for Harite shows that Harite himself was not to be merely a surety. I have no doubt that the arrangement was that Harite was to become the principal debtor.
6. It is argued further that even if that be so, the Collector was entitled to sell the goods under Section 7 (1)(a) of the Land Improvement Loans Act of 1883. That section provides that all loans granted under the Act shall be recoverable by the Collector from the borrower, as if they were arrears of land revenue due by him. But that plainly means, from the borrower, as long as he remains in that position, that is to say, from the borrower for the time being. If the contract with the original borrower is discharged, and a new borrower is substituted, that provision applies to the new borrower. It is one of the complaints of the Government against the plaintiff that Harite never executed a bond which made him a borrower under the Act. But that has nothing to do with the plaintiff. If my view is right that exhibit 28, when accepted by Government, constituted a contract binding upon Harite, it is not the fault of the plaintiff if Government did not take the trouble to see that the contract was carried out.
7. Then it is said that the money could be recovered under Section 7(1) (c) of the Act of 1883, which enables loans to be recovered out of the land for the benefit of which the loan has been granted. It is said that the wire fencing and poles were part of the land, and, therefore, the moneys could be recovered by sale of that part of the land. The answer is that the action of Government itself prevented these articles being part of the land. Government had removed them from the land, and, in my opinion, they were not liable to seizure as part of the land.
8. The learned Subordinate Judge held that in respect of part of the goods the plaintiff's claim was barred by Article 29 of the Indian Limitation Act. Article 29 provides that a suit for compensation for wrongful seizure of moveable property under legal process is barred after one year from the date of the seizure. This suit was not started until August 21, 1936, that is more than a year after the date of the seizure complained of. The question, however, is whether the seizure took place under legal process. Now, the seizure took place under Section 154 of the Bombay Land Revenue Code. As I have pointed out, these tagai loans are recoverable as though they were arrears of land revenue, and under Section 154 arrears of land revenue may be recovered by the Collector causing the defaulter's moveable property to be distrained and sold. The learned Government Pleader has argued that the words 'under legal process' in Article 29 mean 'according to law,' and that any process taken according to law is legal process. In my opinion, that is not the meaning of the words. I think 'legal process' denotes procedure by some sort of Court, and the Collector acting under Section 154 of the Bombay Land Revenue Code is not acting as a Court. He is really acting as a creditor. He, as the officer entitled to recover arrears of land revenue, is given power to seize the defaulter's goods. He is in a position analogous to that of a creditor who is given power under the contract to seize his debtor's goods, if his moneys are not paid. If legal process merely means process according to law, it seems to me that seizure under a valid contract would be just as much seizure according to law as seizure under a statute. In my opinion, Article 29 only applies to seizure under a process issued by a Court. Possibly a revenue Court may issue legal process, but in my view the Collector was not acting in any sense as a Court when he seized these goods. It may be that Article 49, which provides that the suit must be brought within three years from wrongfully taking possession of the plaintiff's property, applies, but this suit was brought within three years from the wrongful seizure whatever date one chooses to take.
9. In my opinion, therefore, the plaintiff's claim is entitled to succeed, and he is entitled to damages for the wrongful seizure of his goods.
10. With regard to the quantum of damages, we shall have to send down issues to the lower Court, because we have no material on which to find out the amount of damages. We send down to the lower Court two issues:--
(1) What goods of the plaintiff were detained or seized by the Collector of Kanara after August 9, 1934?
(2) What was the value of such goods?
11. The respondent to pay costs to date throughout.
12. I agree.
13. Each party to be at liberty to adduce evidence.
14. Issues sent down.