AMBIKA BHAWANI DEVI Vs. BABU CHANDRIKA SINGH

JUDGEMENT

(1.) The main question which arises for decision in this second appeal by the defendant is whether the suit of the plaintiff is barred by limitation. Both the courts below have held that the suit is governed by Article 120 of the Indian Limitation Act (Act IX of 1908) and was instituted within time. According to the appellant, it was governed by Article 62 of the said Limitation Act which prescribes only a three years period of limitation and was thus barred.

(2.) Facts material for decision of the aforesaid question may briefly be stated. Late Rai Bhadur Kedar Nat'h and three others were proprietors of eight annas share in Mahal Mordih Kalaunda bearing tauzi No 3195/1 in pargana Maher, Thana Fatehpur in the district of Gaya and they were recorded as such in Register D. The Mahal comprised of four villages. The said eight annas share of the recorded proprietors was auction sold on 13-1-1947 for arrears of land revenue by the Collector of Gaya and was purchased by the plaintiff. After confirmation of the sale the plaintiff took delivery of possession on 26-9-1947. On 28-3-1949 the said share in the Mahal was sold for arrears of cess and was purchased by one Jadunandan Prasad. On 9-9-1949 Jadu-nandan sold his right, title and interest to the defendant by a registered sale deed. In the meanwhile the plaintiff had applied for mutation of his name in Register D and an order had been passed in his favour but his name could not be entered in Register D. On 10-10-1949 the Mahal was again sold for arrears of revenue amounting to Rs. 119/13/6 only and purchased by Sri Kant Lal, husband of the defendant, for Rs. 3,500. The plaintiff took steps for setting aside that revenue sale but failed and on 27-10-1951 made an application for refund of the surplus sale proceeds in deposit with the Collector of Gaya. The plaintiff was not aware of the sale for arrears of cess in favour of Jadunandan Prasad and execution of a registered sale deed by him in favour of the defendant till then. The defendant too had made an application for refund of the said surplus sale proceeds and the Deputy Collector In-charge passed an order in her favour on 8-2-1952 and she withdrew the amount on 14-2-1952. The plaintiff's petition for refund stood rejected. The plaintiff then applied for setting aside of the sale in favour of Jadunandan Prasad under Section 29 of the Public Demands Recovery Act. His application was allowed and the certificate sale was set aside by the order of the Certificate Officer dated 3-6-1963. The order of the Certificate Court was upheld in Certificate Appeal No. 162 of 1953 by the judgment of the appellate court dated 13-4-1954. After the order of the Certificate Officer dated 3-6-1953 the plaintiff made another application for refund of the surplus sale proceeds on 1-7-1953 but the same was also rejected by Deputy Collector In-charge on 15-12-1953 with an observation that the plaintiff's remedy lay in Civil Court and he could recover the money withdrawn by the defendant only through Civil Court of competent jurisdiction. The present suit was instituted by the plaintiff on 1-12-1956 which is beyond three years from 14-2-1952 when the money was withdrawn by the defendant.

(3.) The plaintiff claimed a decree for Rs. 3,380/-/6, surplus of the sale proceeds of the revenue sale dated 10-10-1949, Rs. 1,196 as interest thereon at the rate of 12 per cent per annum from the date of the withdrawal upto the date of the suit, total Rs. 4,576/-/6 with future interest thereon and cost of the suit. The defendant contested the suit, her main defence being that the suit was barred by limitation and the claim for interest was untenable in law. Various issues, seven in number, including one of limitation were framed and it appears from the judgments of the two courts below that it was the issue on the question of limitation which was really pressed by the defendant before them. It may be stated here that the trial court allowed pendente lite and future interest only on the principal amount and not on the interest claimed and decreed from the date of the withdrawal till the date of the suit.