1. The question involved in this petition is whether Article 31 or Article 49 of the Limitation Act applies. The learned Judge has proceeded on the basis that the former article applies and accordingly has dismissed the suit as being barred by limitation.
2. His decision is in accordance with the view taken in Haji Ajam v. Bombay and Persia Steam Navigation Co, 26 Ba. 562 : 4 Bom.L.R. 447, and in Great Indian Peninsula Railway Co. v. Raisett Chand-mull 19 B 165,. It is true that Farran, J., previous to the amendment of the Act was inclined to follow the decisions which had held that Section 115 applied. But this was not Farran, J.'s own opinion. He says 'had the question been res integra I should have felt much difficulty in concurring in that view'. Then he says : 'Having regard, however, to the current of decisions in the other High Courts I feel constrained to say that the learned Judge below could not have decided differently upon this branch of the case, and I think that now it is rather the part of the legislature to make its meaning more clear if it has been misinterpreted, than for us to run counter to the authorities in the other High Courts, upon the strength of which parties may have forborne to sue within the two years limit, even though we may not be convinced of the reasoning upon which these authorities are based. However, it is not necessary for me to express a final opinion upon this point, as I agree with the Chief Justice on the other branch of the case.' Bayley, A.C.J., however was prepared to act on his own opinion that Article 80 applied, differing from the decisions holding that Article 115 applied. In the opinion of the Court deciding Haji Ajam v. Bombay and Persia Steam Navigation Co. 26 Ba. 562 : 4 Bom.L.R. 447,, the legislative amendment to which Farren, J refers has been made. I respectfully concur with the decisions in those cases.
3. The doubt, therefore, as to the applicability of Article 115 is set at rest, and it was not argued before me, as it was in the lower Court, that that article applied. Consequently the British India Steam Navigation Co., Ltd. v. Hajee Mahomed Esack and Co. 3 M. 107. and Hassaji v. East Indian Railway Company 5 M. 388 : 6 Ind. Jur. 522., have not been cited to me by the learned Pleader for the appellant though the learned Judge below refers to them.
4. The argument before me was that Article 49 applied. It seems to me that Article 49 cannot be applied to a case like this. Article 49 refers to a wrongful detention of specific movable property. On the facts of this case it is clear that what is complained of is nondelivery of goods by a carrier. It may be that if it had been proved that the property claimed was in the possession of the defendants either by some acknowledgment on the part of the defendants to that effect [Cf. Haji Ajam v. Bombay and Persia Steam Navigation Co. 26 B. 562 : 4 Bom.L.R. 447, first paragraph of the judgment, (pages 568, 569)] or otherwise, then Article49 would be applicable. In the absence of this being proved and on the allegations and the evidence in this case, the terms of Article 31 seem to me directly applicable.
5. The petition is dismissed with costs.