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Janaki Nath Sinha Roy Vs. Sir Bejoy Chand Mahtab Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal596,64Ind.Cas.315
AppellantJanaki Nath Sinha Roy
RespondentSir Bejoy Chand Mahtab Bahadur
Cases ReferredBejoy Chand Mahatab v. Tinkari Banerjee
Excerpt:
limitation act (ix of 1908), section 14, schedule i, articles 62, 97 - deduction of time--essential requisite--suit for money had and received--limitation. - .....opinion that article, 62 applies to the circumstances of the case.4. article 62 provides, that a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use must be instituted within three years from the date when the money is received. it has been pointed out in the decision of the judicial committed in hukum chand (sic) v. pirthichand lal chowdhury 60 ind. cas. 444 : 23 c.w.n. 721 : 30 c.l.j. 71 : 17 a.l.j. 514 : 36 m.l.j. 557 : 21 bom. l.r. 632 : (1919) m.w.n. 258 : 46 c. 670 : 26 m.l.j. 181 : 10 l.w. 416 : 46 i.a. 52 (p.c.) that this article is intended to apply to cases which in english law are described as suite for money had and received, the same view had been previously taken, ip numerous cases in this court, amongst.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the plaintiff in a suit for recovery of money paid by him to the defendant as putni rent on the 14th October 1910.

2. It appears that the plaintiff purchased the putni at a sale held under Regulation VIII of 1819 on the 14th May 1908. The putnidar instituted a suit for cancellation of the sale, which was decreed on the 28th May 1910. The Zemindar defendant thereupon preferred an appeal, which was ultimately dismissed on the 2nd May 1912. In the interval, on the 14th October 1910, that is, after the Court of first instance had directed cancellation of the sale, the plaintiff paid rent to the defendant to prevent farther sale under the Regulation. The present suit, which was instituted on the 14th February 1916, has been dismissed by the District Judge as barred be limitation. We are of opinion that this view cannot be successfully challenged.

3. The appellant has argued that he is entitled to a deduction of the time which was occupied by a proceeding for assessment of mesne profits as between himself and the original putnidar on the basis of the decree for cancellation of the sale. This contention cannot be uphold in view of the peovisions of Section 14 of the Limitation Act, which renders it essential that the proceedings should be between the contesting parties; here the Zemindar was not a party to the proceedings for assessment of mesne profits. Nor sap it be suggested that there was, since the 14th October 1910, any period, of time when the right of the plaintiff to institute the present suit was suspended by reason of circumstances over which he had no control, so as tp entitle him to invoke the aid of the rule recognised by the Judicial Committee in Prannatty Roy Chowdry v. Rookeq Begum 7 M. 1. A. 328 : 4 W.R.P.C. 37 : X Suth. P.C.J. 367 : 1 Sar. P.C.J. 692 : 19 E.R. 331, Ranes Surno moyee v. Shooshee Mokhes Burmonia 12 M.I.A. 244 : 11 W.R. P.C.S : 2 B.L.R.P.C. 10 : 2 Suth P.C.J. 173 : 2 Sar. P.C.J. .424 : 20 E.R. 331 and Narityamoni Dassi v. Lakhan Chunder Sen 38 Ind. Cas. 452 : 43 C. 660 : 24 C.L.J. 1 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 20 M.L.T. 10 (P.C.). The question thus arises, which Article of the Limitation Act governs this matter. We are of opinion that Article, 62 applies to the circumstances of the case.

4. Article 62 provides, that a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use must be instituted within three years from the date when the money is received. It has been pointed out in the decision of the Judicial Committed in Hukum Chand (sic) v. Pirthichand Lal Chowdhury 60 Ind. Cas. 444 : 23 C.W.N. 721 : 30 C.L.J. 71 : 17 A.L.J. 514 : 36 M.L.J. 557 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 46 C. 670 : 26 M.L.J. 181 : 10 L.W. 416 : 46 I.A. 52 (P.C.) that this Article is intended to apply to cases which in English Law are described as suite for money had and received, The same view had been previously taken, ip numerous cases in this Court, amongst which may be mentioned Raghumoni Audhikary v. Nilmoni Singh Dec 2 C. 393 : 1 Ind, Dec. (N.S.).541 and Mahomed Wahib v. Mohomed Ameer 32 C. 527 : 1 C.L.J. 167. The fact that there was a failure of consideration at the time the payment was made on the 14th October 1910, would attract the operation of the bar imposed by Article 62,

5. It has been suggested in the course of argument that Article 97 might apply to this case. That Article provides that a suit for money paid upon aq existing consideration which afterwards fails must be instituted within three years from the date of the failure. In the case before us, this Article does not apply, because, as we have just explained, at the time when the money was paid there was no consideration. But even if we hold that the Validity of the putni sale was finally decided only on the 2nd May 1912, as the result Of the appeal by the Zamindar, still, the plaintiff would be entitled, under Article 97, to sue only within three years from the 2nd May 1912. As he did not institute the suit until the 14th February 1916, even upon that view it would be barred by limitation: Bejoy Chand Mahatab v. Tinkari Banerjee 58 Ind. Cas. 741 : 24 C.W.N. 617.

6. The result is that the decree of the District Judge is confirmed and this appeal dismissed with costs.

Ernest Fletcher, J.

7. I agree.


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