JAYANTHI RUDRAYYA Vs. JAYANTHI SUBBARAYAPPA

JUDGEMENT

(1.) The appellant in this appeal obtained a decree in 1921 and in execution of the decree brought certain property to sale. The property was purchased by the predecessor-in-title of the present plaintiffs and the purchase money was duly paid over to the decree-holder on 12 March 1925. Before the sale of the property had taken place, there had been a claim petition put in by a mortgagee and that petition had been dismissed. The mortgagee subsequently filed a suit to set aside the order on the claim petition and to that suit the auction purchaser was made a party. The suit was decreed on 4 December 1926 on the ground that the judgment-debtor had no interest in the property and this finding is of course res judicata as against the auction purchaser and his representatives. On 12 June 1928 the legal representatives of the auction purchaser filed the suit from which the present appeal arises to recover from the decree-holder the money which they had paid for the property purchased. It was contended on behalf of the decree- holder that this suit was barred by limitation but both the Courts below have held that the suit was within time and they decreed the plaintiffs claim. This is now a second appeal by the decree-holder against that method of disposing of the suit.

(2.) The only question which arises is one of limitation. It is argued on behalf of the appellant that this is a suit which falls under Art. 62, Limitation Act. It is argued on the other hand for the respondents that the proper article applicable to the suit is Art. 96. There is one authority directly in favour of the appellant with regard to the application of Art. 62 and that is a decision of Cornish J. sitting singly reported in Sivaramaraju V/s. Secretary of State ( 35) 22 A.I.R. 1935 Mad. 354. The facts in that case are undoubtedly similar to the facts here; but that was a case in which no argument "was put forward with regard to the possibility of applying Art. 96. And indeed on an examination of the facts and dates it will appear that no such arguments could possibly have been successfully put forward on behalf of the party concerned. It is clear that the plaintiff in that case knew on 12 December 1919 that he had paid the money under a mistake, if mistake there was, and that he did not file his suit until July 1925. There was therefore no point in his arguing that Art. 96 rather than Art. 62 applied to the case as under either of these articles his suit would be undoubtedly barred. Although therefore Cornish J. does say that Art. 62 applies to the facts before him, he has said so without considering the possible alternative that the suit with which he was dealing might also fall under Art. 96. And, as has been pointed out in Ramiah & Co. V/s. Sadasiva Mudaliar & Bros ( 25) 12 A.I.R. 1925 Mad. 1255, if the facts of a particular case fall within both Art. 62 and Art. 96, Art. 96 must be applied as it is the more specific and the less general of the two articles. Learned Counsel for the appellant has also relied upon other rulings of this Court in Baijnath Lala v. Ramadoss ( 15) 2 A.I.R. 1915 Mad. 405, Municikpal Council, dindigul V/s. Bombay Co. Ltd. ( 29) 16 A.I.R. Mad. 409 and a decision of mine sitting singly in Shanmugham Chettiar v.Official Receiver of West Tanjore ( 38) 25 A.I.R. 1938 Mad. 532. It will be seen upon an analysis of the facts of these cases that in Baijnath Lala V/s. Ramadoss ( 15) 2 A.I.R. 1915 Mad. 405 and Sivaramaraju v. Secretary of State ( 35) 22 A.I.R. 1935 Mad. 354 it would have been impossible for the plaintiff to have put forward any case based upon a mistake made by himself. In both these cases the plaintiff was throughout asserting the same title under the same knowledge of his rights. In Shanmugham Chettiar v.Official Receiver of West Tanjore ( 38) 25 A.I.R. 1938 Mad. 532 it might plausibly be asserted that the claim of the Official Receiver in that case could be based upon a mistake under which the Court had been labouring in making certain payments. But as has been held in Panna Lal V/s. Adjai Coal Co. , Art. 96 cannot be applied to a case in which the plaintiff himself has not been the victim of any mistake. No argument was adduced before me in Shanmugham Chettiar V/s. Official Receiver of West Tanjore ( 38) 25 A.I.R. 1938 Mad. 532, with regard to the possible applicability of Art. 96. It was a mere question of choice between Art. 62 and Art. 120 and of course it may also be pointed out that the facts in that case were, in no sense, identical with the facts before me in the present case. There is therefore no clear authority that Art. 96 does not apply to the facts of the present case and any authority to the effect that Art. 62 may apply to these or similar facts cannot be binding upon me in the absence of any consideration whether Art. 96 also might apply.

(3.) Learned Counsel for the respondents relies mainly upon the decision of the Full Bench of this High Court reported in Macha Koundan V/s. Kottara Koundan ( 36) 23 A.I.R. 1936 Mad. 50. It is true that this decision does not deal directly with any question of limitation but it does deal with a claim made upon precisely similar facts to those now before me. In that case, as here, the auction purchaser was claiming refund of money paid to the decree-holder and he puts forward as the basis of his claim a discovery which he has made that the property which he purchased was one in which the judgment-debtor had no interest. The question before the Full Bench was whether any such suit lay at all and in order to decide this question the {earned Judges had to analyse the nature of the plaintiffs claim. What they say is this (on p. 208): The facts are that a decree-holder brings a certain property to sale bona fide believing it to belong to his judgment-debtor. The Court also under the same belief orders the sale of the property. The auction purchaser also under the same bona fide belief purchases it. Afterwards it turns out that the property does not belong to the judgment-debtor at all. Thus the auction purchaser purchases nothing, though he paid consideration for it under a mistake. The decree-holder gets a certain amount without really having brought any of the properties of the judgment-debtor to sale, i.e., under a similar mistake. Under the circumstances, it is unconscionable that the decree-holder should retain the benefit of the money so obtained and the auction purchaser should lose it, and one would think that the auction purchaser would have a right of action for money had and received under the general law und not under any code of procedure.