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Cheerath Veetil Karnavan and anr. Vs. E.N.A.S. Narayana Ayyar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1935Mad594; 157Ind.Cas.746
AppellantCheerath Veetil Karnavan and anr.
RespondentE.N.A.S. Narayana Ayyar and anr.
Cases ReferredAbkan Sahib v. Soran Bivi Saite
Excerpt:
receiver - right to indemnity--nature of right--suit for recovery of money spent--article applicable--limitation act (ix of 1908), schedule i, articles 83, 61--money spent by receiver in instituting suit to recover amounts due to estate--limitation--article 61, if governs suit--circumstance that receiver is also benefited--whether makes suit any the less a suit on behalf of the owner. - .....on august 16, 1921, when o.s. no. 42 of 1921 was filed, as to who had the right to achuthan nair's money, whether the tarwad or the tavazhi, and this was settled only by the decision in o.s. no. 27 of 1921, after the plaintiff's right to recover the money paid by him was barred, if article 61 applied, that article must be held to be inapplicable and so the only article applicable would be article 120.8. the reasoning of the learned judge is fallacious. it is true that when o.s. no. 42 of 1921 was instituted there was a dispute as to whether the tavazhi of the 2nd defendant was entitled to achuthan nair's money or whether it was the tarwad represented by the 1st defendant; but nothing could stand in the way of the plaintiff's father getting a decree for the money spent by him from.....
Judgment:

Madhavan Nair, J.

1. The 1st defendant is the appellant. The second appeal arises out of a suit instituted by the plaintiff to recover the money spent by his deceased father as 'Receiver' in the following circumstances. The 1st defendant is the karnawan of the Cheerath tarwad and the 2nd defendant is the karnawan of one of its tavazhis. One Gopalan Nair of the 2nd defendant's tavazhi had taken a ticket in kuri for Rs. 34,000, and after his death his tavazhi karnawan Achuthan Nair who was also the karnawan of the tarwad, 'continued to subscribe to the kuri. He mortgaged the immovable properties belonging to the tarwad lying in the Cochin. State and this kuri right to the plaintiff's father for a sum of Rs. 10,000, O.S. No. 79 of 1095, on the file of the District Court of Trichur, was instituted by the plaintiff's father for the sale of the mortgaged properties. Achuthan Nair being dead, the karnawans of the tarwad as well as of the tavazhi the present defendants Nos. 1 and 2, were parties to the suit. Pending its disposal the plaintiff's father was appointed 'Receiver' by the District Court of Trichur for the purpose of realising the kuri amount. During the pendency of the Receiver application, the 1st defendant alleging that on the death of Gopalan Nair the kuri right lapsed to the tarwad, instituted O.S. No. 27 of 1931, for the recovery of the kuri amount in the Sub-Court, Palaghat. The plaintiff's father was impleaded as a party to that suit. As he got himself appointed 'Receiver', the plaintiff's father also filed a suit for the recovery of the kuri amount, O.S. No. 42 of 1911, on the file of the Sub-Court, Palaghat, on August 16, 1921. Against the order appointing the plaintiff's father as 'Receiver' the 1st defendant appealed to the Chief Court, Cochin. The appeal was allowed and the receivership was cancelled by order of the Appellate Court dated January 22, 1923. The plaintiff's father's right to continue O.S. No. 42 of 1921, having thus terminated, the 2nd defendant herein applied in that suit to get himself transposed as plaintiff and his application was allowed. Afterwards, the 2nd defendant herein came to terms with respect to O.S. No. 27 of 1921, which as a result was decreed with costs, and O.S. No. 42 of 1921, was dismissed. The plaintiff's father's right to recover costs incurred by him as 'Receiver' in filing O.S. No. 42 of 1921 was reserved in the order passed in that suit. The plaintiff's father having died, the present suit was instituted by the plaintiff on November 22, 1926, to recover, as already stated, the money spent by his father for the purpose of conducting O.S. No. 42 of 1921, as Receiver.

2. On behalf of the present appellant two main contentions were urged before the District Munsif, namely.

(1) that the suit was not maintainable, and.

(2) that it is barred by limitation.

3. On the first contention he held that the suit was maintainable, but on the second he held that it was not barred by limitation. In the result the suit was dismissed. On the second contention it was argued before the District Munsif that either Article 61 of the Limitation Act or Article 83 applied to the suit. He held that the article applicable was Article 83 of the Limitation Act and that the cause of action commenced on January 22, 1923, the date when the Receivership was terminated, when in his opinion the Receiver 'became entitled' to indemnity from the estate. If Article 61, applied the cause of action arose on August 16, 1921, the date when costs were incurred; but the District Munsif thought this article would not apply. As was pointed out by him, the suit was barred by limitation whichever Article 61 or 83, applied, the suit having been filed admittedly more than three years after the dates August 16, 1921, and January 22, 1923. On the question of limita-tation it was also argued before the District Munsif that the right to sue would accrue only on date November 19, 1924, when the suit O.S. No. 42 of 1921 was dismissed by the Court, the argument being that the Receiver has a lien on the estate for the amounts due to him that the lien subsisted till the date of disposal of the suit. This argument was disallowed on the ground that the Receiver was never in possession of any properties and that he could claim neither a lien nor a charge on the special circumstances of the case; and that what he could claim was only an indemnity as he had not been authorised to spend money on behalf of anybody's estate.

4. In Appeal the District Judge held that neither Article 83, nor Article 61, of the Limitation Act applied to the case, and that the proper article applicable was Article 120, of the Limitation Act. Applying that article he held that the suit was not barred by limitation. In the result he gave a decree to the plaintiff, the decree amount being recoverable 'from the assets arising to Gopalan Nair and Achuthan Nair from the kuri and in the hands of the tarwad of the tavazhi.'

5. The main question argued in the Second Appeal is the question of limitation. For the reasons given by the learned District Judge, I have no doubt that the suit is maintainable, and that Article 83, of the Limitation Act, does not apply to the facts of the case. The right to indemnity which a Receiver has got is, in my view, not created by the contract. I am, therefore, of opinion that Article 83, has obviously no application.

6. The substantial question for consideration is whether Article 61, of the Limitation Act would apply. Under that article the period of limitation for suits 'for money payable to the plaintiff for money paid for the defendant' is '3 years' and the period begins to run from the time 'when the money is paid.' The question is whether in the circumstances of the case the expenses incurred by the plaintiff's father as 'Receiver' in instituting the suit could be considered to be money payable to the plaintiff for money paid for the defendant within the meaning of the article. The question has not been discussed by the learned District Judge on principle or with special reference to the facts of the case. He first distinguished the decision in Kandasami Pillai v. Avayambal 34 M 167 : 7 Ind. Cas. 399 : (1910) M W N 316 : 8 M L T 194 : 20 M L J 989, from the present case, then referred to Peary Mohan Mukerjee v. Narendranath Mukherjee 32 C 582 and Ahkan Sahib v. Soran Bivi Saito Ammal 38 M 260 : 28 Ind. Cas. 290 : 28 M L J 347, (see paras. 4 and 5 of his judgment) and as a result of the discussion he held in para. 6 'with some hesitation' that Article 61, does not apply and that the suit is governed by Article 120. In my opinion none of these cases gives any difficulty in deciding the question. In Kandasami Pillai v. Avayambal 34 M 167 : 7 Ind. Cas. 399 : (1910) M W N 316 : 8 M L T 194 : 20 M L J 989, Article 61, was applied to a suit by an agent to recover the expenses of litigation conducted by him on behalf of the principal. Referring to this case the learned Judge says:

the analogy to the circumstances of the present case is obviously close and I was at one time inclined on the strength of this decision to apply Article 61, to the present case. But in Kandaswamt Pillai's case.

(1), the plaintiff had a principal whom he could sue as soon as he made a payment for him.

7. Then the learned Judge pointed out that in the present case, since it was not settled on August 16, 1921, when O.S. No. 42 of 1921 was filed, as to who had the right to Achuthan Nair's money, whether the tarwad or the tavazhi, and this was settled only by the decision in O.S. No. 27 of 1921, after the plaintiff's right to recover the money paid by him was barred, if Article 61 applied, that article must be held to be inapplicable and so the only article applicable would be Article 120.

8. The reasoning of the learned Judge is fallacious. It is true that when O.S. No. 42 of 1921 was instituted there was a dispute as to whether the tavazhi of the 2nd defendant was entitled to Achuthan Nair's money or whether it was the tarwad represented by the 1st defendant; but nothing could stand in the way of the plaintiff's father getting a decree for the money spent by him from the assets of Achuthan Nair either in the hands of the tavazhi or the tarwad. The position is very clear when we look at the decree passed by the learned District Judge himself in the present suit. The decree makes the money recoverable:

from the assets arising to Gopalan Nair and Achuthan Nair from the kuri and in the hands of the tarwad or the tavazhi.

9. In the circumstances of the case I think it cannot be said that there was no person against whom the plaintiff's father could have had recourse on the ground that the right to money due to Achuthan Nair was in dispute when he instituted O.S. No. 42 of 1921. For the same reason, the observations in Peary Mohan Mukerjee v. Narendranath Mukerjee 32 C 582 relied on by the learned Judge do not also stand in the way of applying Article 61, if it otherwise applies, for, as just stated, the plaintiff's father could claim the amount as against the tavazhi of the tarwad; for it cannot be denied, having regard to the facts of the case, that he was in effect suing on behalf of Achuthan Nair's estate. The order appointing the plaintiff as Receiver shows that the kuri amount was 'vested in him for purposes of collection.' When a Receiver or Manager is appointed by the Court, he is appointed on behalf of all persons interested in the property. In the present case, having regard to its facts the plaintiff's father had filed the case not only for himself but also for the defendants; in fact O.S. No. 42 of 1921, was really a suit on behalf of Achuthan Nair's estate. The circumstances that plaintiff's father is also benefited by the suit does not make any the less a suit on behalf of the deceased Achuthan Nair's estate. If the plaintiff's father succeeded in the case, he, as mortgagee, and the defendants, as owners, will have claim to the kuri amount. Referring to Sadasiva Ayyar, J's view in Abkan Sahib v. Soran Bivi Saite 38 M 260 : 28 Ind. Cas. 290 : 28 M L J 347, wherein he said that 'the suit would be barred by Article 61, if it were an ordinary suit to obtain a simple decree for money' the learned Judge observed that the present suit is not a simple suit for a decree for money. I cannot accept this distinction. Though the plaintiff's right is restricted to the kuri assets in the possession of either or both of the defendants, it is all the same in substance a claim for money that he makes.

10. The circumstances of the case leave no room for doubt that the plaintiff as Receiver appointed by the Court was suing in O.S. No. 42 of 1921, for the kuri amount on behalf of Achuthan Nair's estate, and so it follows that Article 61, would apply to the case. Nothing has been pointed out to me by the learned Counsel for the respondent which would show that Article 61, would not apply and that the proper article applicable is Article 120, of the Limitation Act. I would therefore, hold that the plaintiff's suit is barred by limitation. In the result the decree of the lower Appellate Court is set aside, and the plaintiff's suit is dismissed with costs throughout.


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