S. Maharajan, J.
1. This is an appeal against the order of the Principal Subordinate Judge, Cuddalore, rejecting the appellant's petition for permission to sue in forma pauperis on the ground that under Order 33, Rule 5 (d-1), Civil Procedure Code, as amended in Madras, the suit 'appears' to be barred by the law of limitation. The learned Subordinate Judge rejected the petition in limine even before ordering notice to the respondent. In fact, the petition was filed in Court on 5th April, 1972 and on the very next day, that is, on 6th April, 1972, he passed an order rejecting the petition with unholy hurry. One wonders why in the circumstances of the case, he should not have ordered notice and come to a decision after hearing the respondent. The anxiety to fulfil the demands of statistics appears to have precipitated the ill-conceived order of the learned Subordinate Judge.
2. It is necessary to state a few facts before considering whether the petition of the appellant 'appears' to be barred by any law (in this case, by the law of limitation). The appellant Veerabadra Pillai was a clerk in the Gingee Branch of Burmah-Shell Depot of the respondent, Rajeswari Vedachalam, who is a permanent resident of Chingleput. The appellant alleged that he was a clerk for the period from 1952 to 1956. G. Venkatrama Naidu, who is the Manager of the respondent, is alleged to have taken the appellant in 1965 from Gingee to Chingleput and accused him of having misappropriated respondent's money to the tune of Rs. 24,858. The appellant further alleged that Venkatrama Naidu wrongfully confined him at Chingleput for 3 days and by practicing fraud and undue influence upon him and his wife Andal Ammal, obtained two documents on the unwarranted basis that the appellant had swindled respondent's money to the tune of Rs. 24,858. The first document that Venkatrama Naidu obtained was a sale deed from Andal Ammal, the wife of the appellant, in respect of her house in favour of the respondent for Rs. 8,000. The second document was a promissory note for Rs. 9,672-51 obtained from the appellant and his wife, Andal Ammal in favour of the respondent. The appellant's wife instituted O. S. No. 23 of 1967 on the file of the Court of Subordinate Judge, Cuddalore, for a declaration that the sale deed executed by her had been obtained by coercion and undue influence, for cancellation of the same and for recovery of the property sold with mesne profits. On the other hand, the respondent instituted O. S. No. 144 of 1968 on the file of the Court below against the appellant and Andal Ammal for recovery of monies due under the promissory note executed by the appellant and Andal Ammal on 20th July, 1965. In both these suits the appellant and his wife contended that no money was really due by the appellant to Rajeswari Vedachalam because the former had not in fact misappropriated any moneys be-longing to the latter, that the promissory note and the sale deed had been obtained by coercion and undue influence on the false representation that the appellant had committed misappropriation and that they were, therefore, void. The Court accepted the case of the appellant and his wife and by judgment dated 22nd October, 1971, granted a decree in O.S. No. 23 of 1967 setting aside the sale deed executed by Andal Ammal in favour of Rajeswari Vedachalam and dismissed with costs O. S. No. 144 of 1968, which Rajeswari Vedachalam had filed for recovery of the money due under the promissory note. It is true that Rajeswari Vedachalam has preferred appeals against these two judgments and those appeals are pending.
3. But during the pendency of the appeals and on 5th April, 1972, that is to say, within about six months after the rendition of judgments in O. S. No. 23 of 1967 and O. S. No. 144 of 1968, Veerabadra filed a petition under Order 33, ruler of the Civil Procedure Code for permission to sue Rajeswari Vedachalam in forma pauperis for recovery of a sum of Rs. 1,401.60. The basis of this claim was formulated as follows. In addition to the promissory note and the sale deed aforementioned and for the purpose of making good the moneys alleged to have been misappropriated by the appellant, the respondent took an agreement for sale of the appellant's lorry for Rs. 15,000 on 19th July, 1965. This agreement itself was unsupported by any consideration. The respondent's agent sold the lorry for Rs. 17,900 and after paying out of the sale proceeds Rs. 1,500 due by the appellant by way of insurance and Rs. 10,113 due by the appellant under a hire purchase agreement with a third party, the balance of Rs. 7,787 was taken by the respondent in discharge of the moneys due by the appellant as a result of the alleged misappropriation made by him. The appellant asked for the recovery of Rs. 7,787, with interest at 12 per cent. per anum from 19th July, 1965 upto the date of claim. The appellant stated that inasmuch as the Subordinate Court had declared in O. S. No. 23 of 1957 and O. S. No. 144 of 1968 that no moneys of the respondent had been misappropriated by the appellant, no moneys were actually due by the appellant to the respondent and that consequently the sale deed of Andal Ammal and the promissory note by the appellant and Andal Ammal and the application of the sum of Rs. 7,787 out of the sale proceeds in discharge of the alleged due were all void.
4. The learned Subordinate Judge in a laconic order held that this claim was barred under Article 113 of the Limitation Act of 1963, because it had not been filed within three years from the date of the agreement of sale of the lorry. It appears from the order that the pauper petitioner was not heard on the question of limitation, nor was his advocate given a hearing.
5. It is contended on behalf of the appellant now that the proper Article applicable to the claim of the appellant is Article 47 of the Limitation Act, which runs as follows:
Description of Period of Time from
Suit. Limitation. which p mod
begins to run.
For money Three years. The date
paid upon an of the
The question arises, what is the date of the failure of consideration? The appellant's money was paid to the respondent or was forcibly taken from him on the footing that there was an existing liability on the part of the appellant to pay that amount to the respondent. The question whether the liability was existent or non-existent could not be decided on the date of the forced payment. It was a matter of fact decided judicially on 22nd October, 1971 that there was no liability on that date on the part of the appellant to pay the respondent any money. Can it be said that the consideration failed in this case on, the date the failure of consideration was judicially declared?
6. In fact, in Bassu Kaur v. Dhun Singh I.L.R. (1889) All. 47 their Lordships of the Privy Council were confronted with a similar problem and this is how they solved it:
An action for money paid upon an existing consideration which afterwards fails, is not barred till three years after the date of the failure. (Article 79 of the then Limitation Act corresponding to Article 47 of the present Limitation Act). A debt retained in part payment of the purchase money is in effect, and as between vendor and purchaser, a payment of that part; and if that were doubtful on the first retention while there was yet undecided dispute, it could no longer be doubtful when a decree of a Court of justice authorised the retention, and in effect substituted the land for the debt. Dhun Singh retained the money, and Baru Mal lost the use of it, in consideration of the villages which formed the subject of the sale deed. That consideration failed when the decree of 1884, was made, and it failed noneth eless because the failure was owing to Baru Mal's own reluctance to take it under the conditions insisted on by Dhun Singh.
7. In Nathulal v. Sualal , a house was sold and the price was paid by adjustment of debt due by the vendor to the vendee. The vendee was subsequently dispossessed because it was found that the vendor had no title. The vendee filed a suit for recovery of money more than three years after the date of the sale deed and within three years after the vendee was dispossessed. It was contended that the suit was time barred. But the Court held that the suit was within time under Article 97 of the old Limitation Act, which corresponds to Article 47 of the new Limitation Act.
8. The learned Judge of the Rajasthan High Court held that in order to attract application of Article 97 three ingredients must be established; firstly, the suit must be for money which has been paid by the plaintiff to the defendant; secondly, such money must have been paid upon a consideration which was in, existence at the time of the payment; and thirdly, this consideration should have afterwards failed.
9. Now I shall investigate if the three ingredients are present in the instant case. So far as the first ingredient is concerned, it may be pointed out that the sum of Rs. 7,787 which belonged to the appellant was paid by the appellant to the respondent. It was a payment made involuntarily according to the appellant. As far as the second ingredient is concerned, this amount was paid 1 upon a consideration which was thought to be in existence at the time of the payment on account of the alleged misappropriation by the appellant. Thirdly, this consideration failed according to the judgment in O.S. No. 23 of 1967 and 144 of 1968. These judgments have not been reversed and must be deemed for the time being to be correct for the purpose of deciding the question arising in these pauper proceedings.
10. Having regard to the citations quoted before me, I have no option but to hold that the learned Subordinate Judge erred in thinking that the appellant's claim in forma pauperis 'appears' to be barred by the law of Limitation. On the contrary, it 'appears' not to be barred.
11. I wish to make it clear that I am not deciding the question of limitation in these proceedings. It is left open to be agitated if and when the pauper petition of the appellant is allowed and the respondent attacks the claim in the suit as barred by the law of limitation. Suffice it for the present purpose to hold that the trial Court acted illegally in rejecting the petition of the appellant on the ground that that the claim embodied therein appears to be barred by the law of limitation.
12. The order of the Court below is, therefore, set aside and the appeal allowed. The lower Court is directed to restore the petition to its file and proceed with it in accordance with law on the basis that the claim docs not appear to be barred by any law. The costs of the appeal will abide the result of the suit.