M.M. Ismail, J.
1. The 1st defendant in O.S. No. 1945 of 1959 on the file of the City Civil Court at Madras is the appellant before this Court. That suit was instituted by the 2nd respondent (plaintiff) for recovery of 13,500 G.K. Brand flash light lamp bulbs and electric holders taken by the 2nd defendant on 30th September, 1967, from the plaintiff and ordered to be confiscated to the Government or, in the alternative, for recovery of their value of Rs. 1,364-25 together with interest.
2. The circumstances under which the suit came to be filed as alleged by the plaintiff himself was that on 30th September, 11967, the 2nd defendant, a Sub-Inspector of Police, raided the plaintiff's shop on the ground that he had information that some goods were stolen and they were sold to the plaintiff by one Mohamed Ibrahim, a broker; that the plaintiff represented to the Sub-Inspector that they were not stolen goods and that whatever he had purchased from the said Mohamed Ibrahim had been sold away by him except for 10 bulbs; the Sub-Inspector insisted on the plaintiff obtaining 13,500 G.K. Brand flash light lamp bulbs and small electric holders and therefore because of the threat, coercion and intimidation of the said Sub-Inspector, the plaintiff purchased from the bazaar 13,500 G.K. Brand flash light lamp bulbs and handed them over to the Sub-Inspector along with 9 boxes of small electric holders. The plaintiff's further case was that one Poonukkannu Babu was prosecuted under Section 65 of the City Police Act and in those proceedings the Magistrate ordered confiscation of these bulbs and electric holders without any notice to him and as soon as the plaintiff came to know of the order of the Magistrate, he applied to the Magistrate under Section 517 of the Criminal Procedure Code for delivery of those articles to him, but the learned Magistrate declined to order such delivery on the ground that he had no power to review his order and that order of the Magistrate was upheld by the High Court also. It was under such circumstances, the plaintiff came forward with the contention that the entire act of the Sub-Inspector was illegal and contrary to law and the order of confiscation also was made without the correct facts being placed before the Magistrate, and therefore he was entitled to delivery of the goods or their value. The claim of the plaintiff was resisted by both the 1st and 2nd defendants. However, the learned Second Assistant Judge, City Civil Court, Madras, overruled the objections of the defendants and found as a fact that the articles recovered by the 2nd defendant from the shop of the plaintiff on 30th September, 1967, were not stolen goods and that the major portion of the above articles were purchased by the plaintiff from the bazaar and the plaintiff had to surrender all the articles before the 2nd defendant under threat, coercion and intimidation on the part of the 2nd defendant. The learned Judge also came to the conclusion that the 2nd defendant violated the relevant provisions of law in conducting the search of the plaintiff's shop and the above search was illegal and the second defendant had abused his authority as a Police Officer. The further conclusion recorded by the learned Judge was that the confiscation of the goods ordered by the Magistrate was wrong and it could not be supported. The plea that the suit itself was barred by limitation was raised by the defendants, but the learned Judge overruled the plea and held that the suit was not barred by limitation. Consequently, by his judgment and decree dated 23rd December, 1961, the learned Second Assistant Judge decreed the suit of the plaintiff. Against this judgment and decree, the defendants, preferred A.S. No. 63 of 1962 and the same was disposed of by the learned Principal Judge, City Civil Court, Madras. The learned Principal Judge agreed with the conclusion of the Court below and dismissed the appeal. I may point out here that the learned Principal Judge proceeded on the basis that the suit itself was not for compensation or damages against the State for the wrongful acts of its officers, but only for recovery of specific goods taken away from him. The learned Principal Judge further recorded that even if it was to be held that the suit was for compensation for wrongful act committed by the 2nd defendant, still the 1st defendant would be liable to the claim of the plaintiff. In relation to the question regarding limitation, the learned Principal Judge pointed out that the three years period will be available to the plaintiff to file the suit and therefore it was not barred by limitation. It is against these judgments and decrees, the State of Madras has filed the present Second Appeal.
3. Mr. V. Ramaswami, learned Additional Government Pleader, realising the scope of the Second Appeal under Section 100 of the Code of Civil Procedure, did not very property convass the correctness of the findings of the Courts below that the goods were purchased by the plaintiff from the shop and delivered or surrendered under threat of coercion, intimidation, etc. Therefore he confined his arguments to two questions of law, namely, (1) that for the tortious act of the 2nd defendant, who was exercising his statutory functions as a Police Officer, the State of Madras could not be held liable and (2) that the suit was barred by limitation, since the proper article of the Limitation Act that would be applicable to the facts will be either Article 2 or Article 29.
4. In my opinion the first argument is really misconceived. As a matter of fact, for this misconception, the Courts below have also contributed to a great extent. The suit is really not for compensation for any tortious act committed by the 2nd defendant and, though the learned Principal Judge had referred to this fact in one part of the judgment, he did not pursue or sustain that line through the whole of the judgment. As I pointed out already, the suit itself was for recovery of 13,500 pieces of torchlight bulbs and 9 boxes of small electric holders taken by the 2nd defendant on 30th September, 1967, from the plaintiff. If that be the case, the basis of the suit is not commission of any tortious act and the claim is not for damages with reference to such tortious act. On the other hand, any person who claims to be the owner of the property will be entitled to file a suit for recovery of the same from any body else who may be found to be in possession thereof without the authority of the law or sanction of the law. Such a suit cannot be said to be a suit for compensation for wrongful act committed by any person. Consequently, the only question that remains for consideration is whether the plaintiff is entitled to file the suit for recovery of the goods, which have been already ordered by the Magistrate to be confiscated to the Government. The fact that the goods were directed to be confiscated by the Magistrate and they have been taken possession of by the Government and they were subsequently disposed of and the Government are in possession of the sale proceeds is not disputed. The only argument advanced by the learned Additional Government Pleader is that the order of confiscation passed by the learned Magistrate has not been set aside, nor has the plaintiff prayed for setting aside of that order and that, under such circumstances, it is not open to the plaintiff to file a suit directly for recovery of the said articles. In my opinion, this argument overlooks the fact that the order of the Magistrate directing confiscation of the goods does not decide any question of title to the goods. As far as the particular case is concerned, though the plaintiff was cited as a prosecution witness for the prosecution of Poonukkannu Babu, still ultimately Poohukkannu Babu pleaded guilty and therefore the plaintiff was not examined in the Court. If the plaintiff had been examined, he would have had occasion to put forward his case that the goods belonged to him by purchase and they were not stolen property. Under such circumstances the order of confiscation passed by the Magistrate was passed without notice to the plaintiff and in his absence. So it cannot be said that the said order is binding on the plaintiff and it is not open to the plaintiff to canvass the correctness of the order in a Civil Court where he seeks to recover possession of the articles. Over and above that, it has been held by the High Court of Andhra Pradesh in C. Subba Rao v. State of Andhra A.I.R. 1958 A. P. 403 that the order of confiscation does not prevent a person claiming to be the real owner of the goods from agitating his title to the goods in a Civil Court. The learned Judge there pointed out that, under Section 9 of the Code of Civil Procedure, Courts have jurisdiction to try all suits of civil nature excepting suits the cognizence of which is either expressly or impliedly barred and the general rule of law is that when a legal right and an infringement thereof is disclosed and a cause of action is disclosed, and unless there is bar to the entertainment of a suit, the ordinary Civil Courts are bound to entertain the claim. As far as the order of consfication is concerned, no principle or provision of law has been brought to my notice so as to contend that the mere presence or existence of the order of confiscation will bar a. suit of this nature instituted by the plaintiff. Further, in Jaganath Hazarimal Firm v. State of Bombay : AIR1963Bom83 , a Bench of the Bombay High Court has taken the view that an order under Section 517 of the Criminal Procedure Code only concludes immediate right to possessions, but does not conclude the right or title of any person to the ownership of the property and the real owner may proceed against the holder of the articles-and it cannot be said that there is any necessity of having that order set aside. In view of these decisions and on the general principle that a Magistrate, while he passes an order under Section 517 of the Criminal Procedure Code, does not decide the question of title and he is merely concerned with deciding the right to immediate possession of the goods, I hold that the present suit of the plaintiff to recover possession of the articles is not barred by any principle of law and consequently the suit as such was maintainable.
5. Regarding the contention about the proper Article of the Limitation Act applicable to the suit of the 2nd respondent, I may mention that the contention of the learned Additional Government Pleader that either Article 2 or Article 29 of the Limitation Act of 1908 alone applies to the present suit again proceeds on a misconception that the suit is for recovery of damages or compensation for tortious act committed by the 2nd defendant. As I pointed out already, the suit itself is one for recovery of movable property in specie or in the alternative for its value and consequently neither Article 2 nor Article 29 can have any application to the suit. The only other Article which will have application to a suit of this nature where the relief prayed for is recovery of specific movable property is Article 49, under which the period of limitation is three years. If the correct Article to be applied is Article 49, admittedly the suit is within time and not barred by limitation.
6. Under these circumstances, both the contentions put forward on behalf of the State fail and the Second Appeal is dismissed with the costs of the 2nd respondent (plaintiff). No leave.