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Yellammal Vs. Ayyappan Naick - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.914
AppellantYellammal
RespondentAyyappan Naick
Cases ReferredNarasimha Rao v. Thadinanda Gangaraju
Excerpt:
limitation act (ix of 1908), schedule i, articles 29, 62, 120 - attachment of debt--payment of money into court by party owing it--payment of amount to attaching creditor--suit by claimant for recovery of money--limitation. - sundara aiyar, j.1. the question for decision in this second appeal is whether the plaintiff's suit is barred by limitation. the facts on which the question has to be decided are not disputed. the 4th defendant obtained a decree against one perumal naick in original suit no. 37 of 1904. in execution of that decree, she attached, on the 1st of july 1905, a debt due to perumal naick from the 1st defendant in connection with a chit fund. the 1st defendant, after the debt became payable to perumal on the 29th july 1905, paid the money into court on the 15th june 1905, having obtained an order permitting him to do so on the 6th november 1905. the plaintiff pat in a claim petition objecting to the attachment and asserting that the debt was payable to himself by virtue of an assignment made to.....
Judgment:

Sundara Aiyar, J.

1. The question for decision in this second appeal is whether the plaintiff's suit is barred by limitation. The facts on which the question has to be decided are not disputed. The 4th defendant obtained a decree against one Perumal Naick in Original Suit No. 37 of 1904. In execution of that decree, she attached, on the 1st of July 1905, a debt due to Perumal Naick from the 1st defendant in connection with a chit fund. The 1st defendant, after the debt became payable to Perumal on the 29th July 1905, paid the money into Court on the 15th June 1905, having obtained an order permitting him to do so on the 6th November 1905. The plaintiff pat in a claim petition objecting to the attachment and asserting that the debt was payable to himself by virtue of an assignment made to him by Perumal prior to the 4th defendant's attachment. The claim petition was rejected. He then instituted a suit, Original Suit No. 458 of 1905, under Section 283 of the Civil Procedure Code to establish his right to the debt. In the meanwhile, the 4th defendant, on the 3rd November 1906, drew from Court the money which had been deposited by the 1st defendant. The plaintiff's suit, Original Suit 458 of 1905, was dismissed by the Court of first instance but he obtained a decree on appeal. The present suit for the recovery of the money drawn by the 4th defendant from Court was instituted in 1908 within three years after it Was drawn by the 4th defendant.

2. Both the lower Courts have held that the suit is not barred by limitation. The Subordinate Judge is of opinion that Article 62 or 120 of the 1st Schedule to the Limitation Act is applicable to the case.

3. The contention in second appeal is that the suit is governed by Article 29. That Article is in these terms,-

For compensation for wrongful seizure of moveable property under legal process.' The period fixed is one year from the date of the seizure. The 4th defendant had several difficulties to overcome before she could make out that this Article is applicable. Was the debt seized under legal process? Was the alleged seizure of any moveable property? Is the suit one for compensation, and, if so, is it one for compensation for wrongful seizure? If any one of these questions is answered in the negative, the contention must fail. I shall deal with each one of them in order.

4. I am of opinion that there was no seizure under legal process in the case. The debt was attached, presumably according to the procedure laid down in the Civil Procedure Code for the attachment of debts, that is, by giving notice to the debtor directing him not to pay it to the creditor, and to the creditor enjoining him not to receive it from the debtor. It is hardly necessary to say that every attachment by a Court is not a seizure. It is not so where immoveable property is attached; nor is it so in the case of attachment of a debt. It was suggested that when the 1st defendant paid the money into Court on the 6th November 1905, it must be taken to have been seized by the Court. I do not agree with this argument. The money was paid into Court by the 1st defendant voluntarily after obtaining permission to do so. The Procedure Code gave him the right to make such an application. On the other hand, the Court could not have compelled him to make the payment. The word 'seize', in my opinion, means taking hostile possession, and not taking possession of what another voluntarily gives, as the 1st defendant did in this case in order to get rid of his own responsibility whoever might be entitled to the money. In Webster's Dictionary, the word is interpreted thus, 'to take possession by force with or without right; to take possession by virtue of a warrant or legal authority.' The Courts used no force in this case; nor was the debt taken hold of under a warrant of Court. To seize is the same as to capture. It is impossible to speak of a thing which is freely given as being captured. In Rupabai v. Audimulam 11 M.K 345; Kernan and Parker, JJ. refused to uphold the contention that money deposited in Court and received by it and subsequently paid over to a party could be taken to have been 'seized' within the meaning of Article 29. In Jagiivan Javherdas v. Gulam Jilani Chaudhri 8 N.K 17 which was a case where an allowance due to the judgment-debtor from Government was attached, no question was raised as to whether there was a seizure. No authority has been cited in support of the defendant's position that there was a seizure in this case.

5. The next question is, whether a debt due can be regarded as moveable property within the meaning of this Article. I am of opinion that it cannot. It is not necessary to consider whether if money is actually seized by the Court in execution of a decree, it would rot be regarded as moveable property under the Article. The method by which a Court makes a debt due to the judgment-debtor available for the satisfaction of the judgment-creditor's decree against him is different from the method adopted for making available for the same purpose moveable property which the Court can immediately lay hold of through its officers. The Article applies, in my opinion, only where the Court through its officers, is able to reduce the property to its possession, and does so on the motion of the judgment-creditor. I see no reason for straining the words of the section so as to make it applicable to cases where a very different method of realizing property belonging to [the judgment-debtor is prescribed.

6. The third question is whether this can be regarded as a suit for compensation at all. The word 'compensation' has been interpreted very widely in the decisions of the High, Courts, even in the case of suits to which other Articles of the Limitation Act not relating to compensation might appropriately be applied. This has been particularly the case in the application of Article 116 which makes provision for suits 'for compensation for the breach of a contract in writing registered.' Thus, it has been applied to a suit for rent upon a registered contract Vythilinga Pillai v. Thetchanamurthi Pillai 3 M.P 76 to which Article 110 would in terms apply, to suits against agents provided for in specific Articles Harender Krishore Singh v. The Administrator-General of Bengal 12 C.P 357 and jogesh Chandra alias Dhalu Ghose v. Benode Lal Roy Chowdhury 14 C.W.N. 122 : 5 Ind. Cas. 59 to a suit on a bond Magaluri Gurudiah v. Narayana Rungiah 3 M.K 359. See also Ranga Reddi v. Chinna Reddi 14 M.K 465 : 1 M.L.J. 482 which was a suit for settlement of accounts. The Allahabad High Court has refused to apply Article 116 to suits for rent. Ram Narain v. Kanta Singh 26 A.P 138 : (1903) A.W.N. 210 and Juggi Lal v. Sri Ram 10 A.L.J. 1 : 34 A.P 464 : 16 Ind. Cas. 146. I may, with all humility, state that it appears to me that the scheme of the Limitation Act has been inadequately considered in the view that has been adopted with respect to the scope of Article 116. The Act has prescribed specific Articles for suits on various kinds of contract, such as, for the balance of money advanced in payment of goods to be delivered; for the price of goods sold and delivered; for the price of trees or growing crops sold; for the price of work done; for money lent, for money deposited under an agreement for re-payment: Articles 51 to 60. See also Articles 64, 66 to 89, 101, 102, 106, 110 to 112. It also provides for several kinds of suits which would be regarded in English Law, as actions quasi ex contractul such as for money payable to the plaintiff for money paid for the defendant, for money payable by the defendant to the plaintiff, for money received by the defendant for the plaintiff's use; for money payable for interest upon money due from the defendant to the plaintiff. Articles 61, 62 and 63. See also Articles 96, 97, 99 and 100. In one sense every suit for obtaining: the benefit of a contract, except a suit for its specific performance, maybe regarded as one for compensation for the breach of a contract; for, until the contract is broken, (he plaintiff would have no right to sue. Bat it is, to my mind, very doubtful whether the word 'compensation' is used in this comprehensive sense in the schedule. Where money is lent to a person on the promise of returning an equivalent amount, it appears to be a straining of the scheme of the Act to regard a claim for the re-payment of the money as one for compensation. Where a person, on the ground that money due to him has been received by another, sues for the recovery of an equivalent amount, I cannot but hesitate to say that the suit is to be regarded as one for compensation. It is, however, unnecessary for me to express a decided opinion on this question which is one of great importance as I am clearly of opinion that, assuming that the present suit can be regarded as one for compensation or damage, it is not a suit for compensation for wrongful seizure of property under legal process. Now, when property is attached by a Court by seizure, it is brought into the custody of the Court and in cases where seizure is not possible, steps are taken to prevent the debtor from utilizing the property otherwise than for the purpose of satisfying the judgment debt for which the attachment is made. In the former class of cases, it remained in custodia legis. It may never be sold at all. The judgment-debtor or other owner would be entitled to receive it back from the Court if the attachment has been wrongly made; and if the property is sold and the proceeds are brought into Court, it still remains in the hands of the Court for the benefit of the persons to whom the property really belongs. Not until the proceeds are paid away, is the person really entitled deprived of his property and its value I entirely agree with the observations of Sankaran Nair, J., on this point in Damaraju Narasimha Rao v. Thadinada Gangaraju 31 M.K 431 : 4 M.L.T. 271; and I am, with all deference, unable to agree with the view taken by the learned Chief Justice in that case. It would not be open to the real owner of property seized by the Court to sue for the value of the property on the mere ground that it has been seized. Again, if A's property is attached in execution of a decree against B., A cannot sue for its value until he has established his right by a claim petition, or by a regular suit if the claim petition fails; and nothing but the adoption of this procedure would prevent the Court from selling the property and directing the proceeds of the sale to be applied for the satisfaction of the judgment-debt. Further, Article 29 gives only one year's time from the date of the seizure A person failing in a claim petition has one year from the date of the order on the petition for filing a suit to establish his right. It seems to be unreasonable to hold that he has only one year for a suit to recover the value of the property from the date of the seizure, seeing that he could not within that time establish his right to the property. Such a suit, in many cases, would take more than a year from the date of the seizure. It may take a considerably longer time; for he may fail in his claim petition and he may fail also in his regular suit in the first Court or even in two Courts before achieving success finally.

7. Sankaran Nair, J, points out another serious difficulty in upholding the defendant's contention. The learned Judge observes. 'If the owner of the moveable property gets his compensation from the plaintiff who attached these crops before judgment, and that plaintiff's suit is dismissed, to whom is the Court to deliver the property? Not to the owner who has dot his compensation; not to the defendant as whose property it was attached, because it has been declared not to belong to him in the suit which awarded compensation; not to the plaintiff who failed in the suit and never claimed it to be his property.' The learned Chief Justice in his judgment in Narasimha Rao v. Ganga Raju 31 M.P 431 : 4 M.L.T. 271 refers to Articles 30 and 31 in support of his construction of Article 29; but both these Articles expressly refer to bases where goods entrusted to a carrier are lost or not delivered at all as well as to cases where they are injured or where their delivery is delayed. The learned Judge says that the injury to the plaintiff is the seizure of this property. But his property is not lost by the seizure. How then can there be a cause of action for damages which would accrue only if and when it is lost? I cannot treat the question as only one of the measure of the damages sustained by the seizure. In Ramasawami Aiyar v. Muthusawmi Aiyar 30 M.P 12 : 16 M.L.J. 541 : 1 M.L.T. 397; Subramania Aiyar and Miller, JJ. held that where property is seized by a Magistrate and reduced to his custody and is afterwards delivered to some other person, time will begin to run in a suit for the recovery of its value, only after the Magistrate's delivery to the defendant and that limitation will not commence so long as the Magistrate retains the custody of the property. The learned Chief Justice's judgment does not show how that case was distinguishable from the case, before His Lordship. The dictum in Murugesa Mudaliar v. Jattaram Davy 23 M.L 621 that Article 29 is applicable to a suit for the recovery of the value of the goods attached is opposed to the pronouncement in the latter case Ramasawmi Aiyar v. Muthusawami Aiyar 30 M.L 12 : 16 M.L.J. 541 : 1 M.L.T. 397. Another case which is strongly relied on by the learned Vakil for the defendant is Jagjivan Javherdas v. Gulam Jilani Chaudhri 23 M.K 621 already referred to. There the allowance due to the judgment-debtor was drawn by the judgment-creditor several years after the attachment and the suit was for the recovery of the amount so received. West and Nanabhai Haridas, JJ., held that Article 29 was applicable. West, J., held that Section 283 of the Civil Procedure Code would be applicable to a suit for the recovery of an ox or a goat wrongly seized in execution; but to a suit for compensation for damages done to it or for the plaintiff's loss of the use of it or for the recovery of the value of the thing, Article 29 was applicable and that the value of the thing was only one of the elements making up the damages. The learned Judge regarded all suits for money as claims for compensation. He says that in a claim for compensation for wrongful seizure, the value of the article seized blends with other items of damages, such as, the loss of the use of the article or damage sustained by injury to it. It is difficult to see how any blending can take place when the cause of action for the recovery of the value arises only after the expiry of the period of limitation provided in Article 29. With all respect, I am unable to agree with the opinion of West, J. In Lakshmi Priya Chowdhurani v. Rama Kanta Shaha 30 C.P 440 the Calcutta High Court held that a suit to recover the surplus proceeds of a sale, held under Regulation VIII of 1819, wrongfully taken out by the defendant in execution of a decree against the third party, was not governed by Article 29, dissenting from Jagjivan Javherdas v. Gulam Jilani Chaudhri 23 M.P 621 and that the Article applies only to suits where a person is damnified by the seizure itself. I am of the same opinion, for the reasons I have already stated. Apart from the meaning of the Article, and the question whether the damage sustained by the loss of the article may not be claimed as part of the damages sustained by the seizure, I am of opinion that the plaintiff is entitled to waive the seizure and to sue the defendant for money belonging to him and wrongfully received by the defendant, 'if a man's goods are taken by an act of trespass and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible entry or waiving the force he may maintain trover for the wrong, or waiving the tort, he may sue for money had and received. Thus, though a trespass to realty is committed and portions of it, such as minerals, timber, or fixtures, are severed, the injured party waiving the unlawfulness of the severance may sue in trover for the value of the severed chattles; or if a man is unlawfully deprived of the possession of his property which is afterwards sold or pledged, the owner may affirm the transaction and sue the wrongdoer on a contract implied in law to refund the proceeds.' Clerk and Lindsell on Torts, (3rd edition) page 151. See also Bullen and Leake on Precedents of Pleadings (5th edition),page 300, where the English cases are collected. In Danmull v. British India Steam Navigation Co. 12 C.L 477; Witson, J. observes: 'Suppose a lessee, under a registered lease executed in Calcutta, to sue his landlord for breach of covenant for quiet enjoyment, could the landlord set up in reply, 'true, I have broken my contract, but what I did amounted also to a trespass and inasmuch as the period of limitation for a trespass is a short one, your suit on the contract is barred?' The answer would be, 'I do not care whether there was a trespass or not, you have broken your contract and I am suing you as for the breach, not for trespass.' The question in that case was whether, in answer to a suit for breach of contract for non-delivery of goods under a bill of lading, it was open to the defendant to set up the plea that the goods were lost and that the suit was, therefore, barred under Article 30 of the Limitation Act. He was not permitted to set up the plea as in his defence he denied the receipt of the goods. But Wilson, J., went further and held that, even if the loss had been pleaded in the original defence, it could not succeed. In The Rajputana Malwa Railwy Co-operative Stores v. The Aimere Municipal Board 32 A.P 491 : 7 A.L.J. 496 : 6 Ind. Cas. 401 the Allahabad High Court also held that, although the plaintiff might have been entitled to sue for compensation, it was equally open to him to frame his suit as one for money had and received if he had a cause of action for a suit of the latter description and that it was open to him to waive the tort in the receipt of the money.

8. In Narmadabai v. Bhavani Shankar 26 B. 430 the Bombay High Court held that the plaintiff in the suit could frame his action either as for the recovery of a deposit or for breach of contract. See also British India Steam Navigation Co. v. Hajee Mahomed Esack 3 M. 107 referred to and approved by Wilson, J. in Danmull v. British India Steam Navigation Co. 12 C.P 477. When the 4th defendant after his attachment received from Court the money to which the plaintiff was entitled, I am of opinion that the fact gave the plaintiff a cause of action to recover the money received by the 4th defendant. He could have no cause of action for it until the money was paid out. In this case, the plaintiff could not have instituted his suit until his right to the money was established by the decree of the Appellate Court in his suit instituted under Section 283. I hold that Article 29 is not applicable to this case. It is unnecessary to decide whether the Article applicable is 62 or 120 as, in either case, the suit is in time. I would, therefore, dismiss the second appeal with costs.

Sadasiva Aiyar, J.

9. In this case, I have the misfortune to differ from my learned brother. The facts have been stated in the judgment of my learned brother which I have had the advantage of perusing and I need not repeat them. The short question in this case is, whether a suit for recovery of money from the 4th defendant on the ground that the 4th defendant wrongfully carried away from the Court money belonging to plaintiff, money which was paid into Court owing to 4th defendant's having effected a wrongful attachment in execution of the 4th defendant's decree against one Perumall Naik, is barred by limitation. It is contended by plaintiff and found by the lower Court that the attachment was wrongful. The first defendant, who owed the debt to 4th defendant's judgment-debtor Perumal Naik, paid the attached money into Court in June 1906 and the Court took the money into its custody, the deposit of the money being undoubtedly the result of the wrongful attachment made by the 4th defendant. The plaintiff, who claims the money as the assignee of Perumal Naik, has brought this suit in September 1908, more than two years after the money came into possession of the Court.

10. In my opinion, Article 29 of the Limitation Act must be applied to this case. It was argued by the respondent's learned Vakil that it does not come under Article 29 because there was no seizure of the money by the Court. That the attachment and taking possession by the Court of the moveable property of a third party at the instance of the decree-holder would amount to a wrongful seizure of that property by Court has been held in Murugesa Mudaliar v. Jattaram Davy 23 M.P 621. That a wrongful attachment of money is also a wrongful seizure of moveable property and is governed by Article 29 has been held in Jagjivan Javherdas v. Gulam Jilani Chaudhri 8 B.A 17 In law, the word seize means to mike possessed, to put in possession of (see Annandale's English Dictionary). 'Seize' also means 'to take hold of,' 'to take possession of'. I do not deny that frequently the idea of suddenly laying hold, the idea of taking by force, is also in many cases connected with the word 'seize' but after consulting Webster's and the Century Dictionaries, I am satisfied that the word 'seize', when used both by lawyers and laymen, has also frequently the meaning of mere taking possession of and reducing to custody. Even if the verb 'seize' is more frequently connected with the idea of force or suddenness, the noun 'seizure' is not so frequently employed with that implication. The word in Article 29 of the Limitation Act is the noun form 'seizure.' The mere taking into possession can, in my opinion, be called 'seizure,' especially if a claim of legal right is also put forward as justifying such possession even if no force is used. Webster says that the root meaning of 'seize' is 'put (oneself) in possession of.' One of the first set of meanings given by him is to reach and grasp' in law; he says that it means 'to have possession or right of possession.' As regards the noun form 'seizure', one of the first set of meanings given by him is 'a taking into possession.' The second set of the meanings is retention within one's own grasp or power; hold; possession; ownership.' The Century Dictionary says that 'seizure' means also the act of seizing; the fact of being seized or in possession of anything; possession; hold.' I think, therefore, that the word wrongful 'seizure' in Article 29 include mere wrongful taking of possession. See also Multanchand Kanayalal v. Bank of Madras 27 M.A 346 which shows that Article 29 applies to a case where the attaching officer made the attachment without 'taking physical possession' of the attached jaggery kept inside a locked warehouse. The case in Rupabai v. Adimulam 11 M.P 345 where it was held that money which had been deposited in Court by a mortgagor, who had sued for redemption and who voluntarily paid the money for the redemption of the mortgaged property in pursuance of the redemption decree obtained by him, was not property wrongfully seized by the Court, is not relevant to the question now in dispute. There was no order for attachment in that case and the money was not paid into Court in consequence of any order for attachment wrongfully made as against the plaintiff of the subsequent suit.' Under Order XXI, Rule 52, if the property of the judgment-debtor is in the custody of any Court or Public Officer, the attachment is made by a notice to the Court or Officer requesting that the property may be held subject to the further orders of the Court. If a further order is passed to send such property to the Court which issued the order of attachment and if this latter Court takes possession of the property on its being so sent, does not this latter become 'seized' of the property? If the attachment was wrongful as against the plaintiff of the latter suit, will not the possession of the property by the Court be wrongful 'seizure' by legal process? Let us take the case where the moveable property attached was in possession of the judgment-debtor himself in his house though the property really belonged to a third party. When the process-server tells the judgment-debtor that he has come to attach the property in the judgment-debtor's house as the judgment-debtor's, the judgment-debtor voluntarily, in order to injure the owner and not because he fears any force or violence at the hands of the process-server, hands over the property to the process peon. Can it be held that because, there was no force used, there was no 'seizure'? I am clearly of opinion that money, which comes into the hands of the Court in consequence of a legal process of attachment, is money 'seized' by the Court and the definition in Webster 'to take possession by legal authority' covers the taking possession by the Court of such money. In the case in Rupabai v. Audimulam 11 M.P 345 the Court took possession of money which was deposited by the decree-holder in the former suit in order that he might obtain the benefit of his redemption decree and not on account of any threatened legal process against him, or on account of any order of Court directed against him.

11. The other question argued by the respondent's learned Vakil is whether the present suit can be regarded as a suit for compensation for the wrongful seizure of money by the Court (as if such money was available to satisfy 4th defendant's decree against Perumal Naik). Both in Jagvjan Javherdas v. Gulam Jilani Chowdhuri 8 B.A 17 and in Damaraju Narasimha Rao v. Thadinada Gangaraju 31 M.P 431 : 4 M.L.T. 271 it was held that a suit for money claimed as damages caused to the plaintiff by the act of defendant in making a Court wrongfully seize the money or moveable property belonging to the plaintiff and by the subsequent disbursement of the money or the sale-proceeds of the moveable property to a person other than the plaintiff is a suit for compensation for wrongful seizure of moveable property governed by Article 29, to which the one year's rule of limitation applies. There is only one cause of action for the plaintiff, viz., the wrongful seizure by the Court of property belonging to plaintiff and all subsequent and consequential events and the damages arising from those events are properly attributed to the original wrongful seizure. I am aware that a good deal can be said to support the dissentient judgment of Sankaran Nair, J., in the case of Narasimha Rao v. Thadinanda Gangaraju 31 M.P 431 : 4 M.L.T. 271. But, on the principle of stare decisis and having regard to the fact that in Narasimha Rao v. Thadinanda Gangaraju 31 M.P 431 : 4 M.L.T. 271 the observations in the earlier case in Muregesa Muduliar v. Jattaram Davy 23 M.L 621 are followed, I do not think it advisable to try to change the course of the decisions on this question. There is also the question of public policy to be cansidered; the persons who are aggrieved by a wrong done under the protection and in consequence of a legal process should come into Court within a short time to pursue all their remedies and to obtain all the reliefs for such wrong. The argument based on Section 283 of the Civil Procedure Code which makes provision for a special procedure whereby a claimant to attached property can establish his right by a suit brought within a year of the attachment was relied upon by the respondent's learned Vakil to found an argument on the score of hardship, viz., that if the claim proceedings and the suit to establish his title are pending for more than a year from the date of seizure as in the present case--the plaintiff would be put to hardship when he brings a suit for damages after he establishes his title. This argument was also advanced in the case of Narasimha Rao v. Thadinanda Gangaraju 31 M.S 431 : 4 M.L.T. 271 but the learned Chief Justice failed to see how the provisions of Section 283 could have the effect of postponing the time for a suit governed by the express provisions of Article 29 of the Limitation Act. The casein Ramasawami Aiyar v. Muthusawmy Aiyar 30 M.K 12 : 16 M.L.TJ. 541 : 1 M.L.T. 397 was not a case of the seizure by a Civil Court at the wrongful instance of a decree-holder but it was by a Magistrate partly under his own search warrant and partly by the Police. The custody of the Magistrate, under these circumstance, was held to be for the benefit of the owner whether plaintiff or defendant, and it was further held that plaintiff's cause of action for recovery of paddy wrongfully delivered to a defendant by the Magistrate was governed by Article 49 of the Limitation Act. Article 29 was never relied upon in that case and was not even quoted in the judgment. This case Ramaswamy Aiyar v. Muthusawmy Aiyar 30 M.K 12 : 16 M.L.TJ. 541 : 1 M.L.T. 397 seems to have been distinguished by the learned Chief Justice evidently on the ground that the seizure by a Magistrate is not the wrongful seizure contemplated by Article 29. See Narasimha Rao v. Thadinanda Gangaraju 31 M.K 431 : 4 M.L.T. 271. I am aware that the case of Jagijvan Javherdas v. Gulam Jilani Chaudhri 8 B.K 17 has been disapproved in Lakshmi Priya Chowdhurani v. Mama Kanta Shaha 30 C.K 440 but it has been approved in Narasimha Rao v. Thadinanda Gangaraju 31 M.H 431 : 4 M.L.T. 271 and, until the case in Narasimha Rao v. Thadinanda Gangaraji 31 M.N 431 : 4 M.L.T. 271 is properly overruled by a decision of the Full Bench of this Court, I do not think myself at liberty to hold that Article 29 does not apply to this case, or to hold that the plaintiff obtains another distinct cause of action on the date when the 4th defendant withdrew the money from the Court and could save himself from the bar of limitation by putting forward this latter date as the date of the alternative cause of action. This Article 29 seems to have been applied in Ramasawmi Aiyar v. Venkatatanjeri Chetty 12 Ind. Cas. 406 : 10 M.L.T 381 decided by Abdur Rahim and Phillips, JJ., who applied a liberal interpretation to its terms, following the principle of the ruling in Narasimha Rao v. Thadinanda Gangaraju 31 M.K 431 : 4 M.L.T. 271. In the result, I would reverse the judgments of the lower Courts and dismiss the plaintiff's suit, but, under the circumstances, I would make no order as to costs in any of the Courts.

Sundara Aiyar, J.

12. My learned brother is of opinion that the suit is barred by limitation. The result is that, under Section 93, Civil Procedure Code, the appeal is dismissed with costs.


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