KISTUR CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a plaintiff's revision application against an appellate decree of the Civil Judge Bundi in a suit for recovery of money brought against the State of Rajasthan.

(2.) THE plaintiff paid a sum of Rs. 531/4/6 as custom duty to the erstwhile State of Bundi during the years 1944-45, 1945-46 and 1946-47. For the same years he was assessed to income tax amounting to Rs. 277/6/- which he deposited on 1. 2. 48. He became entitled to a refund of Rs. 277/6/- as soon as he obtained a certificate from the Income Tax Officer Bundi State showing the amount of Income tax paid by him under the following notification: i "office of the Dewan Bundi State. NOTIFICATIOn No. 5013/m dated Bundi the 4th September, 1945 THE Darbar are pleased to order that on production from persons or firms carrying on business in the State a certificate of the Income Tax Officer Bundi State showing the amount of income tax paid they will draw the equivalent as a rebate from Customs Department subject to their having paid that amount in customs duty. If however, the customs duty is less than the amount of in come tax paid they will only draw the amount paid as customs duty. " Sd/- B. N. Ahalwaria For Dewan Bundi State. " THE present suit was instituted on 30. 11. 54 for the refund of the sum of Rs. 277/5/ -. THE lower appellate court dismissed the suit holding that Article 62 was applicable to the case. On behalf of the applicant it is contended that the suit is governed by Article 120. Reliance is placed on Muncipal Board, Ghazipur Vs. Deokinandan (1) in which it was held that a suit for the refund of octroi legally taken by a Municipality but wrongfully refused to be returned is governed by Article 120, Limitation Act and not by Art. 2 or Art. 62. It was observed: " THE decisions of their Lordship of the Privy Council in Gurudass Pyra V. Ram Narain Sahu (I. L. R. 10 Calcutta 890) and Hanuman Kamat V. Hanuman Mandur (I. L. R. 19 Calcutta 123) and other cases decided by Courts in India, seem to lay down that Art. 612 applies only when the money at the time of receipt can be said to have been received by the defendant for the plaintiffs use. According to respondent's allegations as we understand them, the sum in question cannot at the time of receipt be said to have been received by the Board for the respondent's use. " THE contention of the Deputy Government Advocate on the other hand was that Article 62 is applicable. Reliance was placed on Bhusawal Municipality Vs. Nusserwanji (2), India Sugars and Refineries Ltd. V. Hospet Municipal Council (3) and Roman Catholic Mission V. Sunder Singh (4 ).