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Damaraju Narasimha Rau Vs. Thadinada Gangaram and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1908)18MLJ590
AppellantDamaraju Narasimha Rau
RespondentThadinada Gangaram and ors.
Cases ReferredJugjivan v. Gulam I.L.R.
Excerpt:
.....of this section can have the effect of postponing the time when limitation begins to run, or suspending the time which has begun to run, when the limitation act makes express provision in the matter. 3. further i can see no good ground for holding that time does not run so long as the property remains in custodia legis. true, he may eventually succeed in showing the property is his, and in the meantime the property is safe, but he is none the less, damaged by being deprived of the enjoyment of his own property. not to the plaintiff who failed in his suit and never claimed it to be his property. from the statement of facts by the judges of the small causes court it does not clearly appear whether after attachment the property continued in the custody of the court or in the possession..........the owner may seek compensation for damage to it and for his loss of the use of it and for such a suit article 29 prescribes a term of one year i agree. but he also holds that when the recovery of the article may become impossible or undesirable, the owner may seek compensation both for the thing itself and for the damage he has sustained through being deprived of the use. to such a suit then article 29 would apply as the double claim of compensation consists of elements of identical character; these, though capable of separate existence, blend 'by contract in their subject into one.' this reasoning will only apply when they blend into one by the plaintiff finding it impossible or undesirable to recover the property probably on account of its nature by reason of the seizure itself. it.....
Judgment:

Arnold White, Kt., C.J.

1. The question for determination in this appeal is whether the plaintiff's suit is barred by limitation. For the purpose of this question the material facts and dates are as follows:

Defendants Nos. 1 to 3 brought a suit against the 5th defend, ant, and on December roth 1899 attached certain paddy before judgment. The plaintiff put in a claim petition with respect to the paddy. On March 8th, 1900, this petition was dismissed. On March 26th, 1900, the plaintiff brought a suit under Section 283 of the Code of Civil Procedure to establish his right to the property. On November i8th, 1901, he obtained a declaration as to his right. On February 7th, 1903, this declaration was affirmed on appeal. In the meantime, the property had been sold by the Court, and on May 15th, 1900, the proceeds had been distributed to the defendants, the 4th defendant having received his share as a party entitled to rateable distribution. On June 1st 1903, the present suit for a refund of the money by the defendants was instituted. The plaintiff contends that time began to run from the date of the distribution of the proceeds of the sale of the attached property. If this is so, and the period of limitation is 3 (three) years-deducting (as it is conceded the plaintiff is entitled to deduct) the time when the Court was closed - the suit is in time.

2. The Munsif held that time began to run from the date of the attachment (December 10th 1899), that the article of the 2nd Schedule to the Limitation Act which applies was Article 49, and that the suit was time-barred. The District 'Judge held that the question of limitation was governed either by Article 49 or Article 36 and affirmed the Munsif's decree. The lower Courts have dealt with the case on the footing that the attached property was moveable property, and I deal with the case on the same footing. My view is that the appropriate Article is Article 29, since this is the only Article which refers specifically to wrongful seizure under legal process. This was the view taken by this Court in Murugesa Mudaliar v. Jattaram Davi I.L.R. (1900) M. 621. I do not think this Article should be construed as not applicable where the plaintiff seeks only to recover the value of property seized or the sale proceeds if the property has been sold, and as limited to claims for consequential damages. This is obviously not the sense in which the word is used in Articles 30 and 31, and I do not see why it should be construed in this restricted sense in Article 29. If Article 29 applies, the law is express, and the time is one year from the date of the seizure. No doubt Section 283 of the Code makes provision for a special procedure whereby a claimant to property which has been seized in execution may establish his right, but I fail to see how the provisions of this section can have the effect of postponing the time when limitation begins to run, or suspending the time which has begun to run, when the Limitation Act makes express provision in the matter.

3. Further I can see no good ground for holding that time does not run so long as the property remains in custodia legis. The damage to the plaintiff is the seizure of his property. True, he may eventually succeed in showing the property is his, and in the meantime the property is safe, but he is none the less, damaged by being deprived of the enjoyment of his own property. The measure of damages is, of course, a different matter. If he brings suit after his property has been restored to him, and his suit is in time, he can of course only recover damages on the footing that he has not been permanently deprived of his property. If he' has already recovered damages on the footing that he has been permanently deprived of his property, and it is afterwards determined that the property is his, or the plaintiff's suit is ultimately dismissed, a question may arise, as to what order, the Court, ought to make with regard to the disposal of the attached property or the proceeds thereof if it has been sold; but I do not think this is a question which can be taken into consideration in construing the plain language of an enactment.

4. In Murugesa Mudaliar v. Jattaram Davi I.L.R. (1900) M. 624, where goods were attached and sold whilst a declaratory suit by a party who claimed to be the owner of the goods was pending, it was held that time began to run from the date of the attachment. If 'Article 29 does not apply, I think the appropriate Article is Article 49--see Multanchand v. Bank of Madras I.L.R. (1905) M. 46 - and that time would run from the date when the property was wrongfully taken. In this view also the suit would be time-barred. The case Ramaswamy Ayyar v. Muthuswamy Ayyar I.L.R. (1906) M. 12 where property had been seized by a Magistrate, is, I think, distinguishable.

5. It was contended on behalf of the appellant that either Article 62 or Article 120 applies. As regards Article 62, it is not necessary for me to consider whether if there had been no specific Article, which, as it seems to me, in terms applies to the present case, the money received by the defendants in this case is money had and received to the plaintiff's use within the meaning of the Article. I think Article 29, which is specific in its terms, applies, and not the general provisions of Articles 62 or 120. As I read the judgment of West J. in Jagjivan v. Gulam I.L.R. (1883) B. 19. I think it supports my view.

6. As regards the 4th defendant who received a portion of the sale proceeds by way of rateable distribution, I do not think that as regards the question of limitation, any distinction can be drawn between his case and that of the other defendants, since his right to rateable distribution is dependant on the seizure which has been held to be wrongful as against the plaintiff.

7. I would dismiss the appeal with costs.

Sankaran Nair J.

8. The suit was instituted on 1st June, 1903, to recover the value of the paddy crops belonging to the plaintiff, attached by the defendants 1, 2 and 3 before judgment in a suit brought by them against the 5th defendant, and sold on the 10th April 1900, to satisfy the decree obtained in that suit. The proceeds of the sale were distributed among the defendants on the 15th May, 1900, and it is accordingly argued before us that Article 29 applies and the suit is barred as it was not brought within one year from the date of the attachment. The plaintiff presented a claim petition when the property was attached which was dismissed on the 8th March, 1900. He sued to declare his title on the 26th March, 1900, and he obtained his final decree declaring his title on the 7th February, 1903.

9. A person whose property is attached in a suit between third parteis is entitled under the Civil Procedure Code to apply to the Court which attached his property to release the same from attachment, and the attachment will be set aside and the property released if he proves his title. The property, if moveable, remains in the custody of the Court while under attachment, and it will be restored to him on proof of his title.

10. If he fails in his application, the Civil Procedure Code allows him to bring a suit to declare his title within one year from the date of his order, and if he obtains a decree in his favour, the Court which attached his property and in whose custody it continues to remain is bound to restore it to him on his application. If the property has been sold and the proceeds are in Court, it is bound to deliver to him such proceeds. The loss of the moveable property is not, therefore, in my opinion, a necessary consequence of the wrongful seizure by attachment. The right to sue eyen after one year from the date of the attachment implies that the property continued in the claimant even after the expiry of the period prescribed by Article 29. So long as the property remains in the custody of the Court he cannot be said to have lost it and is not therefore entitled to any compensation for its loss, and Article 29 of the Limitation Act does not, therefore, apply. It might be otherwise where the loss to the plaintiff is directly due to the seizure. A suit, for instance, for damages on account of the deprivation of the use of the goods, for instance, for the hire of furniture under attachment, would come within the Article. If Article 29 applies, the result will be curious. If the owner of the moveable property gets his compensation from the plaintiff who attached his crops before judgment, and that plaintiff's suit is dismissed, to whom is the Court to deliver the property? Not to the owner, who has got his compensation. Not to the defendant, as whose property it was attached, because it has been declared not to belong to him in the suit which awarded compensation. Not to the plaintiff who failed in his suit and never claimed it to be his property.

11. The opinion expressed in Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) M. 621, that Article 29 applies to such a case is opposed to the opinion expressed on the same facts in Murugesa Mudali v. Jattaram Davy I.L.R. (1899) M. 478 and both were obiter dicta. From the statement of facts by the Judges of the Small Causes Court it does not clearly appear whether after attachment the property continued in the custody of the Court or in the possession of the defendants.

12. Nor, in my opinion, does Article 49 apply. The suit is not for any specific moveable property, nor have the defendants wrongfully taken, injured, or detained the property. The wrongful seizure was by the Court, though at the instance of defendants Nos. 1 to 3. If there was any wrongful taking or detention of any property it was only when the money was paid over to the defendants. The Article that applies is, therefore, either Article 62 or Article 120, and in either case the suit is not barred.

13. Mr. Ramesam contends that the plaintiff's cause of action arose when the wrong was inflicted on him. This may be so, but the wrong for which he now claims compensation is not the attachment but the payment to the defendants of the money which belongs to him.

14. Of the authorities cited the decision in Lakshmi Priya Chowdharani v. Rama Kanta Saha I.L.R. (1902) C. 440 supports my view. The case in Jugjivan v. Gulam I.L.R. (1883) Bom. 19 was strongly relied upon by the respondent's pleader. But a careful consideration of that judgment has satisfied me that it strongly supports my conclusion. Mr. Justice West points out that when the plaintiff wants to recover his property, the proper course to follow is the one I have already indicated. He adds: 'Besides the recovery of the article, the owner may seek compensation for damage to it and for his loss of the use of it and for such a suit Article 29 prescribes a term of one year I agree. But he also holds that when the recovery of the article may become impossible or undesirable, the owner may seek compensation both for the thing itself and for the damage he has sustained through being deprived of the use. To such a suit then Article 29 would apply as the double claim of compensation consists of elements of identical character; these, though capable of separate existence, blend 'by contract in their subject into one.' This reasoning will only apply when they blend into one by the plaintiff finding it impossible or undesirable to recover the property probably on account of its nature by reason of the seizure itself. It obviously cannot apply when the two claims blend into one after the expiry of the period prescribed by Article 29. At any rate, I do not think that the learned Judge had that case in view. The suit itself was apparently not brought within 3 years after payment to the defendants.

15. I am, therefore, of opinion that the plaintiff's claim is not barred, and would accordingly reverse the decrees of the Courts below and pass a decree in favour of the plaintiff with costs throughout.


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