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Shaikh Jamal Vs. Shaikh Chand and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal79,70Ind.Cas.289
AppellantShaikh Jamal
RespondentShaikh Chand and ors.
Cases ReferredMatangini Debya v. Prasannamoyi Debya
Excerpt:
limitation act (ix of 1908), schedule i, article 61 - co-defendants --money paid into court by one on behalf of both-suit for contribution--limitation. - .....doubt that the suit is barred. article 61 applies to a suit for money payable to the plaintiff for money paid for the defendant. the period of limitation is three years, which runs from the date when the money is paid. admittedly in this case no money was paid within three years of the institution of the suit.2. on behalf of the appellant it is contended that, even if article 61 is applied, it should be held that the money was not paid for the defendants until the date of the final decree in the litigation. in support of this contention reliance is placed on the case of matangini debya v. prasannamoyi debya 3 c.l.j. 93. but the facts of that case are distinguishable. there the plaintiff paid certain money as rent of a putni tenure, and at the time he made that payment the payment was for.....
Judgment:

1. This is an appeal against the decision of the First Additional, District Judge, of Dacca, affirming the decision of the Fourth Munsif of Dacca, dismissing the suit of the plaintiff, the appellant before us. The suit was for recovery of a share of the costs of the litigation and of money due for the redemption of a mortgage in which the plaintiff and the defendants were jointly interested. Both the lower Courts have held that the suit failed on the ground that it is barred by limitation. The payment in redemption of the mortgage was made as far back as 1907 and the litigation terminated on the 29th May 1913. The Article of the limitation Act applicable to the suit has been held by the lower Appellate Court to be Article 61, and if that Article applies there can be no doubt that the suit is barred. Article 61 applies to a suit for money payable to the plaintiff for money paid for the defendant. The period of limitation is three years, which runs from the date when the money is paid. Admittedly in this case no money was Paid within three years of the institution of the suit.

2. On behalf of the appellant it is contended that, even if Article 61 is applied, it should be held that the money was not paid for the defendants until the date of the final decree in the litigation. In support of this contention reliance is placed on the case of Matangini Debya v. Prasannamoyi Debya 3 C.L.J. 93. But the facts of that case are distinguishable. There the plaintiff paid certain money as rent of a putni tenure, and at the time he made that payment the payment was for his own sole benefit. Subsequently, as the result of the decree setting aside purchase of the putni, the payment made became payment for the benefit himself and the defendant; and it was, therefore, held that the cause of action in the suit for contribution did not arise until the date of the decree by which the payment became a payment benefiting the defendant. In the present case the payments made for this litigation were payments made for the defendants at the time they were made. Whether the redemption suit ended in the plaintiff s favour or not, the payments were made for the benefit of himself and the defendants in this suit who were his co-plaintiffs in that suit. Article 61 seems to us to be one that clearly applies to the facts of this case. Reliance, however, is also placed on the finding of the First Court that there was an implied contract that the defendants should reimburse the plaintiff for any money paid on their account as costs of their suit in excess of his share. But even if this be treated as a suit for breach of contract to which Article 115 of the Limitation Act would apply, the plaintiffs position is no better; On the implied contract the defendants would be liable to pay their share of the expenses of the litigation as each payment was made. In the absence of a finding of a contract to pay at the conclusion of the litigation their liability could not be postponed till the 28th May 1913. The period of limitation is the same under Article 115, as under Article 61 and the breach of the implied contract would be simultaneous with the payment made, since the liability arose on the making of the payments. Our attention has been drawn to Section 95 of the Transfer of Property Act. Under that section the defendants are clearly liable to reimburse the plaintiff for the payments which he has made. But that question does not arise in the present appeal. The only question that arises is when the liability commenced, and there is nothing in that section which would defer the date when the liability arose.

3. We agree with the lower Courts that the suit is barred by limitation and accordingly dismiss this appeal with costs.


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