1. The plaintiff is the appellant before us m the Second Appeal. As karnavan of a Malabar tarwad he brought this suit for the recovery of tarwad money (Rs. 3,000) which the defendant (a junior member of the tarwad) has been withholding from him (the plaintiff), the defendant having denied the plaintiff's title to recover that amount as tarwad money from the 6th November 1906 to the plaintiff's knowledge. The cause of action is stated in the seventh paragraph of the plaint to have accrued on the 6th November 1906. The suit was brought on the 30th September 1909.
2. The facts have been found in the plaintiff's favour by the lower Courts and the only question we have to decide is whether, on those facts, the suit is barred or not, the lower Courts having dismissed the suit as barred.
3. The lower Courts have held that either Article 61 or Article 81 of the second schedule to the Limitation Act applies. Article 61 applies to a suit 'for money payable to the plaintiff for money paid for the defendant.' The plaintiff in this case did not pay any money for the defendant (to any creditor of the defendant or otherwise) but claims money belonging to the' plaintiff which the defendant had all along admitted to be tarwad money till November 1906. Neither does Article 81 apply as the plaintiff was not a surety and the defendant was not a principal debtor in respect of the tarwad money in the hands of the do fondant. The lower Courts seem to us to have been misled by the nature of the previous transactions which resulted in the defendant (a junior member of the plaintiff's tarwad) becoming possessed of the tarwad money in 1904.
4. If neither Article 61 nor Article 81 applies, what is the proper article to be applied to the facts? The plaintiff's (appellant's) vakil contended before us that Articles 49, 60, 145 or the general Article 120 applied. Article 49 relates to suits 'for specific moveable property or for compensation for wrongfujly taking...or detaining...the same.' We do not think that a suit for money or for compensation for wrongfully detaining money can be brought under this article, as money is not 'specific moveable property.' Money has been held to come within the phrase 'moveable property' in Article 89 ('by a principal against his agent for moveable property received by the latter and not accounted for'), but it cannot be held to come within the meaning of the phrase 'specific moveable property.' Specific property is property which is recovered in specie, i.e., the very property itself, not any equivalent, substitute or reparation. In a suit for money specific coins or notes are not claimed, only coins or notes of a certain value. Order XXI, Rule 31, of the Civil Procedure Code uses the expression 'specific moveable.' Rule 30 which precedes Rule 31 relates to the execution of decrees 'for the payment of money' and Rule 31 to decree for 'specific moveable' thus showing that the words 'specific moveable ' cannot include 'money.'
5. Article 60 is also inapplicable as the plaintiff did not make any deposit of money with the defendant but the defendant got the tarwad money into his hands from the person with whom it had been deposited. Article 145 is likewise inapplicable as the defendant was not a depositary or pawnee. The last article relied on by the appellant is the residuary Article 120, but it should be applied only as a last resort see Sharoop Dass Mondal v. Joggessur Roy Chowdhry (1899) Calc. 564 if no other article is applicable and we have therefore to see if really no other article applies. We are of opinion that the correct view is that the defendant received' the money for the use of the plaintiff as representing the tarwad. In that view Article 62 is applicable. The application of this article is fully discussed in Mahomed Wahib v. Mahomed Ameer (1901) Calc. 527. As observed in 'Blackstone's Commentaries,' volume1 III, page 162, an action lies ' when one has had and received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the broach of such implied promise and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained in such violation of his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund.' In the present case, as in Mahomed Wahib v. Mahomed Ameer I.L.R. (1901) Calc. 527, the money was received by a co-sharer of the plaintiff, and it may be said: 'These words very aptly describe the present case the defendant has received monies belonging to the plaintiff which ex aequo et bono he ought to refund; the plaintiff's cause of action therefore is for money had and received to the plaintiff's use, and the money is none the less received to the use of the plaintiff, because the defendant unjustly detains it for his own benefit.' In Subanna Bhatta v. Kunhanna Banta (1907)30 Mad. 298 Article 62 was applied where money was received by a beuamidar for the plaintiff. See also the decision of the Privy Council in Syad Lutf Ali Khan v. Mussamat Afzalunissa Begum (1871) 9 B.L.R. 348.
6. The period of limitation under Article 62 is three years from the date of receipt of the money (1904) and this suit is therefore barred.,
7. We therefore dismiss the Second (Appeal with costs.