1. This was a suit to recover a sum of money alleged to have been paid by the plaintiffs to the defendants in excess of the sum demandable by the latter from the former on account of road cess and public works cess. The Courts below have held that the suit is barred by the one year's rule of limitation contained in Section 27 of the old Bent Act, Bengal Act VIII of 1869. We think that in taking this view they have fallen into error. The Cess Act declares that sums due as cess shall be recoverable as rent, but there is no provision that sums over-paid as cess shall be recoverable as an excessive demand of rent, nor is there any provision, express or implied, which applies to sue h a suit the special law of limitation contained in the Rent Act. We think that the rule of limitation applicable in the present case is that contained in Article 96,: of the second schedule of the limitation Act.
2. In this view the case must go back for trial upon the merits.
3. We may observe that those sums, which are said to have been recovered under decrees, cannot be obtained back in the present suit. The proper course is to apply for a review of the decrees under which those sums were recovered, that is, if the plaintiffs are so advised, and if they are within time.
4. As to the other sums which were paid out of Court, the plaintiffs' case is that they were paid under a mistake. It may be quite possible that they may have been voluntarily paid; but the fact of their having been voluntarily paid will not the less entitle the plaintiffs to recover, if they succeed in showing that they paid them under a bond fide mistake as to the amount which the defendants were entitled to recover from them.
5. We set aside the decree of the lower Appellate Court and remand the case to that Court for trial upon the merits.
6. Costs will abide the result.