1. This second appeal arises out of a suit brought by the plaintiff to recover Rs. 536-13-6 and interest from the defendant. The defendant was admittedly the servant of the plaintiff and the plaint said that he misappropriated the amount. The plaint also said that the defendant was dismissed in the end of March 1907, and on the 10th March 1907 the defendant appears to have filed a certain list of expenditure, called farad kharcha, which has been reproduced in his written statement and which he desired to be set off against the sum claimed by the plaintiff, which sum the defendant admitted in his written statement had been received by him.
2. The defence in the Court below urged that the suit was barred by limitation by reason of Article 62. The lower Courts, the Munsif at any rate, seem to have held that it came under Article 64, and that although the plaintiff did not ask for an account and although it was found that there had been no misappropriation, he seemed to think that the suit might be treated as a suit for accounts. The learned Subordinate ledge in the lower Appellant Court treated the case from the commonsense point of view, which we have just indicated, in stating what the case really is, and he found that the only questions for determination in appeal before him were, first, how much, if any, is due to the plaintiff from the defendant, and second, is the suit barred by limitation? As regards the first point we have nothing to do in second appeal and it is concluded by the finding of fact.
3. As regards the question of limitation we are clearly of opinion that the plaintiff's suit as originally framed fell under Article 89 of the Limitation Act, and that the suit as it has been treated in the lower Court, by dealing with the defendant's allegation of payment or expenditure and by going into each item and finding what the balance duo to the plaintiff is, is quite within the scope of such suit. A great deal has been said as to the suit being wholly based on the allegation of criminal misappropriation of a specific sum. But it is immaterial in a civil action whether the misappropriation charged is criminal or not. Money received and misappropriated by a servant is undoubtedly covered by Article 89 and not by Article 36 as was sought to be argued before us. If there is no misappropriation but money is payable by the defendant to the plaintiff for money received by the defendant and not accounted for, Article 89 still applies, and although the defendant filed the farad kharch or bill of expenditure, it is found that the accounts were never adjusted and the plaintiff never admitted any of the items which the defendant pleaded, it cannot, therefore, be said that the money received by the defendant, which admittedly was money due on decrees and deposits in Court, was ever accounted for. The Courts below have, therefore, it appears to us, rightly gone into the allegation of the defendant that he had made certain payments and they have found in some instances in his favour, in some instances against him. Those are findings of fact with winch we have no concern.
4. But it is argued that in a suit for accounts there must be a preliminary decree directing such accounts to be taken. We wish to point out that it is not in every suit, for accounts that such a decree is necessary. Order XX, Rule 16, is clear on the point. It is only where it is necessary in order to ascertain the amount of money due to or from any parties that an account should be taken that the Court shall, before passing the final decree, pass a preliminary decree directing such account to be taken as it thinks fit. Here the Court had the whole of the items disputed between the parties before it. A comparison of the schedule to the plaint with the schedule to the written statement clearly shows this, and really the only point which it had to decide on the merits was how much of the money alleged to have been spent by the defendant out of the money he admittedly received had really been spent by him for the benefit of the plaintiff, it was a matter which the Court can well deal with without putting the parties to the expense of employing a Commissioner and having a separate investigation of accounts.
5. It does not appear to us that any injustice has been done to the defendant and the appeal, is, therefore, dismissed with costs and the decree of the lower Appellate Court upheld.