Skip to content


Ram Kishan Vs. Bhawani Das - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All333
AppellantRam Kishan
RespondentBhawani Das
Excerpt:
sale in execution - right of attaching creditor to sale-proceeds--suit for money received by the defendant for the plaintiff's use--limitation--act viii of 1859, section 270--act xi of 1871 (limitation act), schedule ii, clauses 15, 26, 60, 118. - - clause 15+,schedule ii of the limitation act is clearly inapplicable, for that clause refers to suits brought to cancel the orders of competent courts, it being declared that limitation runs from the date of the final order of a court competent to pass the order......plaintiff by the munsif, who rejected the claim of the defendant, a third party, to be paid the sale-proceeds. the defendant appealed (there being no appeal), and the judge reversed the munsif's order, declaring defendant entitled to the amount. the defendant then obtained an order from the munsif, directing plaintiff to refund the sale-proceeds that he had received, and plaintiff did so, and defendant realised the money. such is a brief abstract of the plaint, and it will be seen that the suit is really one for a declaration of the plaintiff's preferential right to the sale-proceeds as against the defendant, who also claims them, to have the judge's order declared a nullity, and to get a refund of the money paid in consequence of that order from the defendant.4. it was contended by.....
Judgment:

Pearson, Turner and Oldfield, JJ.

1. To determine what period of limitation is applicable to a suit we must look to the nature of the relief sought. In the case before us, the principal relief sought is the recovery of the money. Although the plaint claims the cancelment of the Judge's order and the declaration of plaintiff's prior right, these claims are subsidiary to the principal relief sought, and, indeed, since it is alleged in the plaint that the order impugned was not passed by a competent Court, it was unnecessary for the plaintiff to claim that it should be cancelled. Clause 15+, Schedule ii of the Limitation Act is clearly inapplicable, for that clause refers to suits brought to cancel the orders of competent Courts, it being declared that limitation runs from the date of the final order of a Court competent to pass the order.

2. If the Judge's order was passed by a Court which was not competent to pass it, the plaintiff is entitled to rely on the order of the Munsif as the only valid order, and in virtue of that order to contend that the money was wrongfully taken by the defendant. We do not say that the plaintiff may not be required to prove that the Munsif's order was right, that he was entitled to the priority which that order recognized. This must depend on the defence set up to his claim. Looking to the substantial relief sought, it appears to us that this suit must be regarded as a suit for money had and received to the plaintiff's use. It is then governed by Clause 60 of the schedule to the Limitation Act. If it is not a suit for money had and received to the plaintiff's use, then it falls under Clause 118++ of the schedule, and in either case it has been brought within time.

-----------------------------------------------------------------------------------------

+[Article: 15

-----------------------------------------------------------------------------------------

To alter or set aside a decision or order One year... The date of the final

of a Civil Court in any proceeding other decision or order in

than a suit. The case by a Court

-----------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------

++[Article: 118

-----------------------------------------------------------------------------------------

Description of suit. Period of limitation Time when period

beings to run.

-----------------------------------------------------------------------------------------

Suit for which no period of limi- Six years When the right to sue

tation is provided elsewhere in this accrues.]

-----------------------------------------------------------------------------------------

Spankie, J.

3. The claim was to get back a sum of money which the defendant had unlawfully and illegally realized from the plaintiff under an' illegal and improper order of the Judge passed in appeal on the miscellaneous side. The Judge had no jurisdiction in the matter, there being no appeal, and the plaintiff seeks to have the order nullified. The suit is based on the plaintiff's preferential right to recover the money, being the proceeds of an auction-sale, lie holding a decree which gave him a lien over the property, and which ordered its sale in satisfaction of the decree. In satisfaction of the decree, the property was sold in due course and the entire decretal amount was made over to the plaintiff by the Munsif, who rejected the claim of the defendant, a third party, to be paid the sale-proceeds. The defendant appealed (there being no appeal), and the Judge reversed the Munsif's order, declaring defendant entitled to the amount. The defendant then obtained an order from the Munsif, directing plaintiff to refund the sale-proceeds that he had received, and plaintiff did so, and defendant realised the money. Such is a brief abstract of the plaint, and it will be seen that the suit is really one for a declaration of the plaintiff's preferential right to the sale-proceeds as against the defendant, who also claims them, to have the Judge's order declared a nullity, and to get a refund of the money paid in consequence of that order from the defendant.

4. It was contended by respondent before the Division Bench that Clause 26, Schedule ii, Act IX of 1871, bars the suit. We are asked whether that clause is applicable to the suit, or if net applicable, what clause is so.

5. In my opinion Clause 26, for taking or damaging moveable property, does not apply to the suit. There is nothing in the claim which could be brought under this clause of Schedule ii. Nor is the plaintiff claiming any damages.

6. I was disposed to consider that Clause 15 might apply. But on fuller consideration, I do not think it is applicable. A suit under this clause is brought to alter or set aside a decision or order of the Civil Court in any proceeding other than a suit, where the Court was competent to determine it finally. The Court therefore must have Jurisdiction, which the Judge had not* when he reversed the Munsif's order giving the sale-proceeds to the plaintiff. The order therefore is of itself a nullity and could have no effect. But even if the judge had had jurisdiction, I am doubtful whether the clause would have applied, as the plaintiff asks for something more than the reversal, or, as he calls it, the nullification of the order. It has been suggested that Clause 60 applied; that this is a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. But I am unable to accept this view. The money was not in the first instance received by the defendant for the plaintiff. It was the plaintiff who had received it and who was compelled under legal process to refund the money. It was not the Judge who actually compelled the plaintiff to refund the money. It was the Munsif who directed the plaintiff to bring back the money to Court, and it is the Munsif's order that the plaintiff should have sued to set aside on the ground that the Judge had no jurisdiction to reverse the first order of the Munsif, and therefore the Munsif's second order could not be maintained. Both plaintiff and defendant claimed the sale-proceeds as their own, one by virtue of his decree which maintained Iris lien on the hypothecated property ordered for sale, and the other by virtue of his prior attachment of the property sold. When defendant obtained them in consequence of the Judge entertaining an appeal to hear which he had no jurisdiction, the defendant received the money after it had been paid back into Court from the Munsif's Court for his own use, and not as belonging to the plaintiff, or to be held by defendant to his use. The plaintiff may be legally entitled to the sale-proceeds, but I do not think that it can be said that the defendant received the money under circumstances which render the receipt of it a receipt to the use of the plaintiff. Even more, the plaintiff does not ask for the money on the ground of its having been so received by defendant, but he prays the Court to declare his preferential right as against defendant to recover the sale-proceeds; to nullify the Judge's order which led to his being compelled to refund the money into the Munsif's Court, and to have a decree given to him for the money against the defendant. I think with reference to the circumstances of this case that Clause 60 does not apply, and as I do not find any period of limitation provided for a suit of the nature of the one now before us, it falls within the terms of Clause 118 of the schedule, and six years would be the limitation from the time when the right to sue accrued.

Robert Stuart, C.J.

7. I am of the same opinion as that which Mr. Justice Spankie has given, although not without hesitation. I am clear that Articles 15, 26, and 60 do not apply, and there being apparently no other provision of the Limitation Act expressly applicable, the general law provided by Article 118 appears to afford the only solution of the question referred to us.

--------------------------------------Foot Note----------------------------------

* It has been held in the following cases that where there are rival decree-holders against the same judgment-debtor, not being parties to the same suit, an appeal will not lie by one of such rival decree-holders against an order relating to the distribution of the proceeds of the sale of the property of the judgment-debtor:--Misree Kowur v. Maharaj Buksh Singh Marsh. 527; Hurish Chunder Sircar v. Azimooddeen Shaha W.R. 1862-1864 p. 181; Jungee v. Birjo Behari Singh 2 W.R. Misc. 21; Afzuloonissa Begum v. Parbutty Koomour. 2 W.R. Misc. 42; Choonee Lal v. Puttoo Bhukut 6 W.R. Misc. 74; and Gogaram v. Kartick Chunder Singh B.L.R. Sup. Vol. 1022 : S.C. 9 W.R. 515.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //