1. In this case the plaintiff sued for refund of certain gold and silver kept in the custody of the defendant or in lieu of the price thereof. His case was that he handed over two tolas of gold and some silver ornaments to the defendant in 1923 for making some ornaments but the defendant never made the ornaments and refused to return the gold and silver. The defendant pleaded among other things limitation and denied receipt of these ornaments from the present plaintiff. The learned Small Cause Court Judge found as a matter of fact that the plaintiff did make over the gold and silver to the defendant but the defendant did not make the ornaments and did not carry out his share of the contract. He held further that Article 145 of the Limitation Act applied to the case.
2. A Rule has been obtained on behalf of the defendant and one point is whether Article 145 of the Limitation Act applies or whether there should be a shorter period of limitation under Article 49 or 115. It is argued that the handing over of the ornaments for making into other jewellery is not deposit at all. On the other hand, I am bound by the authorities of this Court and it is perfectly clear that Article 145 does not merely apply even when property is not recovered in species. See the case of Kristo Kamini Dassi v. Administrator-General of Bengal 7 C.W.N. 476. An exactly similar case to this appears to be also the case of Gangahari Chakrabarti v. Nabin Chandra Banikya 34 Ind. Cas. 959 : 20 C.W.N. 232 : 23 C.L.J. 145 where it was held that the case was one under Article 145 of the Schedule. It is argued however, that a time is fixed within which the new jewellery was to be delivered and that after that time expired the defendant ceased to be depository and became a person in wrongful possession and so Article 145 will not apply. In this connection I would only refer to the case of Promotho Nath Mullick v. Prodymno Kumar Mullick 69 Ind. Cas. 900 : 26 C.W.N. 772 where the learned Judge points out that the mere fact of possession by the depository after demand becoming wrongful does not take the case out of Article 145.
3. In this view, I hold that the proper Article under the Limitation Act has been applied and the suit is in time. The Rule is, therefore, discharged with costs, hearing-fee two gold mohurs.