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Muthuswami Goundan and anr. Vs. Dhanushkodi Nadar and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Case NumberAppeal No. 804 of 1947
Judge
Reported inAIR1950Mad734
ActsLimitation Act, 1908 - Schedule - Articles 29 and 49; Code of Civil Procedure (CPC) - Order 20, Rule 10
AppellantMuthuswami Goundan and anr.
RespondentDhanushkodi Nadar and anr.
Appellant AdvocateT. Venkatadri ; and K. Ramachandra Rao, Advs.
Respondent AdvocateN.R. Sesha Iyer, Adv.
DispositionAppeal dismissed
Cases Referred and E. G. M. Firm v. C. M. Banking Co.
Excerpt:
.....- plaintiff was owner of articles - there was wrongful attachment at instanc e of defendants - claim of damages being compensation for wrongful seizure barred under article 29 - no reasons to interfere with order passed by court below - appeal liable to be dismissed. - - 221 of 1943 to defendant 1 and since the decree was entered as satisfied, the attachment was raised and the plaintiff's suit had to be dismissed as it became infructuous. 5. the learned subordinate judge found that the plaintiff was the owner of the articles mentioned in the schedule a as well as such of the articles mentioned in the schedule b which had not been entered in the attachment list. 621 where it was held that in a suit for compensation for wrongful seizure of movable property, where the compensation..........a and b, would fall under article 29, limitation act, which lays down that for compensation for wrongful seizure of movable property under a legal process, the period of limitation is one year from the date of seizure, the question therefore is whether the plaintiff's claim for the return of the articles is one for compensation for wrongful seizure of movable property. in support of his contention me. venkatadri for the appellants invited our attention to various decisions, the earliest of them being murugesa mudaliar v. jattaram davay, 23 mad. 621 where it was held that in a suit for compensation for wrongful seizure of movable property, where the compensation sought is the value of the goods seized, he as well as a claim for damages which was consequential to the wrongful seizure,.....
Judgment:

Govinda Menon, J.

1. Defendants 1 and 3 in O. S. No. 153 of 1946 on the file of the Subordinate Judge's Court, Coimbatore, appeal against the decree of the learned Judge directing them to pay a sum of Rs. 2200 with future interest and costs to the plaintiff. There is a memorandum of cross objections by the plaintiff, objecting tothe dismissal of his suit with regard to his claim for Rs. 3500.

2. The plaintiff claimed that he was the proprietor of a hotel by name, The Star Biriyani and Meals Hotel in Coimbatore which was run in his own name and with big own funds. The ownership of the building was in defendant 1, though originally the transactions were with both defendants 1 and 3. On the basis of the landlord's right to the building in which the plaintiff was conducting his hotel, defendant 1 filed O. S.No. 271 of 1943 on the file of the District Munsif's Court of Coimbatore, impleading only defendant 2 herein as a party defendant. The basis of the claim of defendant 1 was that the hotel was being run by the present defendant 2 and not by the plaintiff and as such defendant 2 owed defendant 1 arrears of rent for the premises. The plaintiff further alleged that this suit by defendant 1 against defendant 2 was a collusive one on a so-called false agreement of tenancy and the decree was obtained collusively against defendant 2. In execution of that decree, the entire movable properties which were in the hotel were attached and the plaintiff was also dispossessed of the premises. This was done on day when the plaintiff was not in the hotel premises but was away at some other place, and the decree-holder and amin drove away the plaintiff's agents, removed the things and articles illegally and unlawfully caused collusive records of delivery of possession. All the articles which were in the premises were not mentioned in the attachment list but only some of them were so included, the rest being clandestinely removed, at the instance of defendant 1, secreted and appropriated to his own use. Such of the articles as were specifically mentioned in the attachment list are set out in Schedule A to the plaint and these which have been secreted and appropriated are mentioned in Schedule B to the plaint.

3. When the plaintiff came to know that the articles had been removed and that his servants were driven out from the premises, he filed a claim petition relating to Schedule A properties but the same was dismissed by the District Munsif. Thereafter, the plaintiff filed a suit against the present defendants 1 and 2 on the file of the District Munsif's Court to set aside the order on the claim petition. But during the pendency of that suit, defendant 2 paid off the decree amount in O. S. No. 221 of 1943 to defendant 1 and since the decree was entered as satisfied, the attachment was raised and the plaintiff's suit had to be dismissed as it became infructuous. After the attachment on the properties was raised, defendant 2 got possession of them. It has to be mentioned that when the articles were attached,defendant 3 stood surety for custody and removed them to his own place and subsequent to the raising of the attachment defendant 3 handed over these articles to defendant 2, The plaintiff therefore claimed recovery of the articles mentioned in Schedules A and B to the plaint which were valued respectively at Rs. 1000 and Rs. 1200 respectively and there was a further claim for damages incurred by him for the wrongful attachment of these properties in the sum of Rs. 3500.

4. Defendant 1 who was the plaintiff in O. S. No. 221 of 1943 denied the allegations in the plaint and stated that the tenancy was in favour of defendant 2 and as the rent was not paid, he filed a suit against defendant 2, obtained a decree, attached the movables in the hotel and had them entrusted to defendant 3 on surety and when defendant 2 paid the decree amount, the attachment was raised. It was further alleged by defendant 1 that the plaintiff was only an agent or manager under defendant 2 in the very Biriyani Meals Hotel and the plaintiff had no right whatever over the movables is the hotel as he was not the proprietor of the same. Defendant 2 in his written statement supported defendant 1 in the main and contested the plaintiff's claim. Defendant 3's written statement mainly dealt with the necessity for the filing of O. S. No. 221 of 1943 and how he took possession of the articles as surety. He also disputed the plaintiff's claim.

5. The learned Subordinate Judge found that the plaintiff was the owner of the articles mentioned in the Schedule A as well as such of the articles mentioned in the Schedule B which had not been entered in the attachment list. On that finding he came to the conclusion that there was wrongful attachment at the instance of defendants 1 to 3 with the result that a decree had to be given in favour of the plaintiff for that amount. The plaintiff's claim for damages to the tune of Rs. 3500 was negatived by the Judge for the reason that the suit to that extent was barred under Article 29, Limitation Act, having been brought more than one year after the date of attachment and seizure. The learned Judge did not agree with the defendants' contention that the suit as regards the recovery or the return of the movables in Schedules A and B to the plaint was barred under Article 29, Limitation Act, but was of the view that either Article 48 or Article 49 would be applicable. The attachment and seizure of the movables was on 12th March 1943 and the suit itself was filed on 12th February 1946, that is, within three years of the date of seizure.

6. We shall first of all consider the question of limitation and in doing so, the sustainability of the memorandum of cross objections can also be disposed of. The basis of the plaintiff's claim with regard to the movables in Schedules A and B is the wrongful retention of the same by defendant 2, and as such the relief prayed for was that the defendants should return the articles to the plaintiff. With regard to the damages, the allegation in the plaint was that since the plaintiff was unlawfully deprived of the continuance of his hotel business by the fraudulent conduct of the defendants, he had suffered damages by the loss of a running business which was estimated at Rs. 100 per mouth. It is therefore clear that the relief so far as Schedules A and B are concerned is the return of these articles, failing which under Order 20, Rule 10, Civil P. C. the price of these articles had to be claimed.

7. For the appellants it is urged that the suit for the recovery of the movables mentioned in Schedules A and B, would fall under Article 29, Limitation Act, which lays down that for compensation for wrongful seizure of movable property under a legal process, the period of limitation is one year from the date of seizure, The question therefore is whether the plaintiff's claim for the return of the articles is one for compensation for wrongful seizure of movable property. In support of his contention Me. Venkatadri for the appellants invited our attention to various decisions, the earliest of them being Murugesa Mudaliar v. Jattaram Davay, 23 Mad. 621 where it was held that in a suit for compensation for wrongful seizure of movable property, where the compensation sought is the value of the goods seized, he as well as a claim for damages which was consequential to the wrongful seizure, the period of limitation applicable is one year under Article 29, Limitation Act. At page 626, the learned Judges held that there is no reason in principle for making a distinction that a suit for compensation for seizure of movable property when the compensation is merely the value of the goods should be governed by Article 49 whereas a compensation for damages should be governed by Article 29, and the Legislature never intended that any such distinction should be made, because Article 29 is quite general in its terms and was intended to apply to all cases where alleged wrongful seizure was made under a legal process. This decision was followed in Narasimharao v. Gangaraju, 31 Mad. 431 : 18 M. L. J. 590, where Sir Arnold White C. J. reaffirmed what he himself had stated in Murugesa Mudaliar v. Jattaram Davay, 23 Mad. 621, with whose view Pinhey J. concurred though Sankaran Nair J. dissented, The majority view was that Article 29 should not be construed as limited to claims for consequential damages and as not applicable to caseswhere the plaintiff seeks only to recover the value of the property seized, or the sale proceeds, if the property had been sold. Both these decisions were again considered in Pannaji Devichand & Co. v. Sanaji Kapurchand, 53 Mad. 621: A. I. R. 1930 Mad. 635, where Kumaraswami Sastri J. and Reilly J. gave expression to the opinion that Article 29 applies to all cases where movable property is actually seized and that seizure is wrongful, the starting point of limitation being the date of actual seizure. Our attention was also drawn to the decision in Ramnarain v. Umrao Singh, 29 ALL. 615 : 4 A. L. J. 548 a decision of a single Judge, and Maung Hla Han v. Delta Trading Co., A. I. R. 1937 Rang. 523 : 174 I. C. 240, a judgment of Leach J. as he then was. Banerji J. in Ramnarain v. Umrao Singh, 29 ALL. 615 held that the limitation applicable to a suit for damages on account of an alleged unlawful attachment of a shop belonging to the plaintiff wag that prescribed by Article 29, Limitation Act and the limitation began to run from the date of attachment. The observations in Maung Hia Han v. Delta Trading Co., A.I.R. 1937 Rang. 523 : 171 I. C. 240 are also to the same effect.

8. On the other hand the respondent's counsel contends that the proper article applicable is either Article 48 or Article 49, Limitation Act, either of which prescribes a period of three years. Mr. Sesha Aiyar for the respondent relies upon Krishna Ayar v. Sudalaimuthu Pillai : AIR1946Mad33 and Venugopal v. Gopal Chettiar : AIR1946Mad453 in both of which cases it was held that the article applicable was Article 49. He also cited before us a decision of a single Judge in Parshadilal v. Chandan : AIR1935All915 holding that a suit for return of property which had been wrongfully attached and subsequently released from the attachment is governed by Article 49 and not by Article 29, as it is not one for compensation for wrongful seizure. Time for such suits begins to run from the time when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful, i. e., after it is released from attachment.

9. With regard to the movables enumerated in Schedules A and B to the plaint the suit is for recovery of them in specie and if that were not possible, for their price. Can such a suit be held to be one for compensation for wrongful seizure? We think that such a suit cannot be classified as one for compensation for wrongful seizure. A converse case to the one we are now considering was decided in Murugesa Mudali v. Jotharam Devay, 22 Mad. 478. What happened there was thatin execution of a decree, certain goods were attached and the appellant therein filed a claim petition stating that the goods belonged to him and not to the judgment-debtor. The claim having been disallowed, he filed a suit and obtained a declaration of his title to the goods. But prior to the decree granting him a declaration, the attached goods had been sold and certain third parties had become the purchasers thereof. In such a state of things, the appellant, whose right to the movables had been declared, filed a suit for the recovery of the goods or their value against the defendants who were the decree-holders in the earlier suit. It was held that since the goods were not in the possession, or under the control of the defendants, but had been sold and purchased by third parties, the plaintiff was not entitled to a decree for their recovery in specie and his only remedy was by way of damages for the wrongful taking of his goods at the instance of the defendants. It was further held that the suit being framed for the recovery of specific movable property was governed by Article 49, Limitation Act, and the alternative prayer for the value of the goods as compensation must be read as ancillary to the main relief. This decision lays down that if the attached goods had been sold in court auction and passed out of the possession or custody of the defendants, then, a suit for the recovery of the movable in specie would not lie. In the present case, the plaintiff claims the recovery of the articles and it is admitted that defendant 2 had possession of the same. The learned counsel for the respondent distinguished the cases in Murugesa Mudaliar v. Jattaram Davay, 23 Mad. 621, Narasimharao v. Gangaraju 31 Mad. 431 : 18 M. L. J. 590 and Pannaji Devichand v. Senaji Kapurchand, 53 Mad. 621: A. I. R. 1930 Mad. 635 on the ground that in all these cases the suit was for compensation for wrongful seizure and not for the actual recovery of the goods seized. In our opinion, the distinction that he seeks to draw is well-founded. Both in Murugesa Mudaliar v. Jattaram Davay, 23 Mad. 621 and Narasimharao v. Gangaraju, 31 Mad. 431: 18 M. L. J. 590 there was no prayer for the recovery of moveables in specie. There was no request to the Court that the actual articles were to be delivered over to the plaintiff. The prayer in both of them was for a sum of money being the price of these goods which had passed out of the possession of the defendants also. The decision in Murugesa Mudali v. Jattaram Davay, 23 Mad. 621 was an off-shoot of the decision in Murugesa Mudali v. Jotharam Davay, 22 Mad. 478, already referred to. When finally the High Court held in Murugesa Mudali v. Jotharam Davay,22 Mad. 478 that the frame of the plaintiff's suit could not be for recovery of possession of movables in specie because these articles had passed out of the defendants' possession or control, the plaintiff filed the suit for damages and was confronted with the plea that more than one year had elapsed from the date of seizure. It was this subsequent suit that came up in Murugesa Mudaliar v. Jattaram Devay, 23 Mad. 621 and the majority of the Judges held that the suit was barred under Article 29. Readingboth these decisions together, it would follow that if the plaintiff had, in the first instance, learned his suit for damages caused by thewrongful ceizure, within one year of the actual date of seizure, he would have succeeded. The facts in Narasimharao v. Gangaraju, 31 Mad. 431 : 18 M. L. J. 590 are also similar, because even there the goods had been sold pending the plaintiff's suit for declaration that he was entitled to them. Such being the case, the defendants in the case in Narasimharao v. Gangaraju, 31 Mad. 431 : 18 M. L. J. 590 were not in possession of the articles and the frame of the suit could be only for the price of the goods sold. Pannaji Devichand v. Senaji Kapurchand, 53 Mad. 621 : A. I. R. 1930 Mad. 635 is a case where no question of the recovery of the articles ever arose, since the suit simpliciter was only for damages and therefore that decision cannot have any application to the present case, A perusal of the facts in Ramnarain v. Umrao Singh, 29 ALL. 615 and Maung Hla Han v. Delta Trading Co., A. I. R. 1937 Rang. 523 : 174 I. C. 240 also reveals the circumstance that in both thesecases there was no claim for the recovery of the actual articles. It seems to us that useful guidance can be had for the decision of this case from the cases reported in Krishna Aiyar v. Sudalaimuthu Pillai : AIR1946Mad33 and Venugopal and Bros. v. Gopal Chettiar : AIR1946Mad453 In the first of these cases Leach C. J., and Shahabuddin J. were of opinion that where movable property belonging to the plaintiff had been wrongfully attached and taken possession of by the defendant and after the plaintiff succeeded in getting anorder for delivery of the articles, it was found that some of the articles had been removed and the plaintiff filed a suit for the recovery of such articles, the suit was not for compensation for wrongful seizure of movable property but was one for wrongful taking or injuring, or wrongfully detaining property and as such the appropriate article was Article 49, Limitation Act. The learned Judges were also of opinion that Article 48 could not apply because the defendant therein could not be said to have been in possession of the properties on the date of the suit. On this view, it was held that Article 49 was applicable. It seems to us that some of the observations contained in Krishna Iyer v. Sudalaimuthu Pillai : AIR1946Mad33 run counter to the decisions in Narasimharao v. Gangaraju, 31 Mad. 431 : 18 M. L. J. 590 and Pannaji Devichand v. Sonaji Kapurchand, 53 Mad. 621: A. I. R. 1930 Mad. 635. For the decision of this case, it is unnecessary for us to go so far as to say that even if the defendants are not in possession of the wrongfully seized goods, a claim for compensation against such defendants would fall under Article 49, Limitation Act. Venugopal and Bros. v. Gopal Chettiar : AIR1946Mad453 was a case where a tailor had been deprived of his sewing machine as a result of wrongful attachment and when his claim to his machine was established it was found that some parts of the machine were missing. In such circumstances, Yahya Ali J. was of opinion that the limitation must be computed either under Article 48 or under Article 49, Limitation Act, and not under Article 29. The learned Judge referred to Krishna Aiyar v Sudalaimuthu Pillai : AIR1946Mad33 and J. P. E. Pugh v. Ashutosh Sen, 8 Pat. 516 : A.I.R. 1929 P. C. 69. The earlier cases in Pannaji Devichand v. Senaji Kapurchand, 53 Mad. 621: A. I. R. 1930 Mad. 635 and Murugesa Mudali v Jetharam Devay, 22 Mad. 478 were considered and distinguished. We are, therefore, of opinion that where the property wrongfully seized from the plaintiff is alleged to be in the possession of the defendants, and the suit is for recovery of the said properties coupled with a prayer for the price of these articles, as should be asked for under Order 20, Rule 10, Civil P. C. the plaintiff can take advantage of Article 49, Limitation Act and could not be confronted with Article 29. Where the goods wrongfully seized from the plaintiff had been sold and thereby passed into the hands of third parties, a suit against the defendant for the loss caused to the plaintiff by such wrongful seizure and sale, being the price of the goods so sold, would be governed by Article 29 and it should be brought within one year from the date of seizure. The decisions quoted for the appellants come within the second category mentioned by us and since in the present case the suit is for recovery of possession of the specific movables, from the custody or control of the defendants, it seems to us that the decisions quoted by the respondent are applicable and the suit to that extent is not barred.

10. Then comes the question as to whether the plaintiff's claim for damages on the ground that he had been deprived of the use of the articles and thereby prevented from running his business is to be upheld. The learned Subordinate Judge as we have already stated was of opinion that the plaintiff's claim was for damages on the ground that he has been deprived of the use of the articles by reason of their having been taken away by the defendants and as such it was in the nature of compensation for wrongful seizure. Mr. Sesha Aiyar contends that on a proper reading of the plaint it cannot be said that his claim was for compensation for wrongful seizure but that it was for damages suffered by him as a result of the deprivation of the continuance of his business. He particularly refers to para. 14 of the plaint as well as to para. 18. On a careful perusal of the plaint, it seems to us that the justification for the claim for damages is the wrongful seizure of the articles and that being so such damages should be deemed to be compensation for such wrongful seizure. That Article 29 would be applicable to such cases is evident from the decisions we have discussed when considering the defendants' claim to the effect that the suit for the recovery of the value of the articles is barred. In addition we may also refer to Yellammal v. Ayyappa Naick, 38 Mad. 972 : A. I. R. 1914 Mad. 126, Ramaswami v. Venkata Sanjiva Chetti, 10 M. L. T. 381 : 12 I. C. 406 and E. G. M. Firm v. C. M. Banking Co., A. I. R. 1940 Rang. 276 : 1941 Rang. L. R. 1. The principles laid down in these cases can also be applied to the plaintiff's claim for damages. It seems to us that the learned Subordinate Judge was right in holding that the claim for damages being compensation for wrongful seizure is barred under Article 29. The memorandum of cross objections should, therefore, be dismissed with costs. (His Lordship then considered the questions whether the plaintiff was not the owner of the articles and, if he were, what was the price of the articles and agreeing with the findings of the lower Court dismissed the appeal).


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