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Annada Mohun Roy Chowdhury Vs. ManiruddIn Mahomed and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.392
AppellantAnnada Mohun Roy Chowdhury
RespondentManiruddIn Mahomed and ors.
Excerpt:
limitation act (ix of 1908), schedule i articles 61, 120 - 'payment,' meaning of--contribution, suit for--limitation applicable. - .....no. 6, that article being applicable only to a suit for money payable to the plaintiff for money paid for the defendant.' there was no money paid by the plaintiff far the defendant no. 6 and so far as he is concerned, that article does not apply. it is contended, however, that he can set up the plea of limitation applicable to the other defendants and that as far as they are concerned article 61 applies. no doubt, it is open to one of several defendants to appeal from the whole decree where the decree appealed from proceeds upon a ground common to all the defendants. here the cause of action against defendant no. 6 appears to be different from that against the other defendants. but even if it were open to defendant no. 6 to set up that article, we do not think that that article.....
Judgment:

1. This appeal arises out of a suit for contribution. It appears that the plaintiff held a jote jointly with defendants Nos. 1 to 5 and 7 under defendant No. 6, who is the landlord. The plaintiff, however, was not recognised as a tenant by defendant No. 6, who brought a suit for rent against defendants Nos. 1 to 5 and 7 and obtained a decree. In execution of that decree he attached the jote and the plaintiff thereupon deposited the decretal amount in Court and prevented the sale. He now brings this suit for contribution against defendants Nos. 1 to 5 and 7 in respect of the amount payable by them for their shares in the jote, and the defendant No. 6, the landlord, has also been joined in the suit on the ground that if he had already received the rent payable by the defendants Nos. 1 to 5 and 7 from them, a decree might be passed against defendant No. 6 for recovery of the amount claimed minus the amount payable by the plaintiff in respect of his share.

2. The Court of first instance dismissed the suit on the ground of limitation. On appeal that decree was reversed and the case was remanded to the first Court for trial on the merits. Defendant No. 6 alone has appealed to this Court.

3. It is contended on his behalf that Article 61 of the Limitation Act is applicable to the suit and not Article 120. We are of opinion that Article 61 cannot apply to the case as against defendant No. 6, that Article being applicable only to a suit for money payable to the plaintiff for money paid for the defendant.' There was no money paid by the plaintiff far the defendant No. 6 and so far as he is concerned, that Article does not apply. It is contended, however, that he can set up the plea of limitation applicable to the other defendants and that as far as they are concerned Article 61 applies. No doubt, it is open to one of several defendants to appeal from the whole decree where the decree appealed from proceeds upon a ground common to all the defendants. Here the cause of action against defendant No. 6 appears to be different from that against the other defendants. But even if it were open to defendant No. 6 to set up that Article, we do not think that that Article would bar the suit. The period of limitation under that Article runs from the date on which the money is paid. In the present case the deposit was made on the 5th November 1908 by the plaintiff in Court with an application to the effect that the money might be paid over to the decree-holder. The Court did not pass any order upon that application on that day, apparently because it was made in the absence of the decree-holders' Pleaders, and the Court directed the matter to stand over till the 14th November for orders. On that day no objection having been made to the deposit the Court directed the amount to be received, and held that the decree had been fully satisfied. We think that there was no payment of the money until the Court accepted the money on the 14th November.

4. It is contended on behalf of the appellant that there was payment as soon as the money was deposited.

5. But so long as it was not accepted by the Court, it was open to the plaintiff to withdraw the deposit and we do not think that the plaintiff could have sued the defendants for contribution before the second order was made by the Court on the 14th November. We think that the payment under Article 61 means payment either to the person to whom it is to be made or into Court on behalf of such person, and such payment was made only on the 14th November.

6. In any view of the case, therefore, the order of the Court below is right and this appeal must be dismissed with costs, the hearing-fee being assessed at one gold mohur.


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