SADHU CHARAN PARIJA Vs. KRISHNAMANI DEI

JUDGEMENT

(1.) This second appeal is by defendants. There is also an application to be considered, by the son and heir of deceased respondent 20, for being substituted in his father's place and added as a respondent.

(2.) In the plaint the plaintiff is described as Sri Gopinath Deb Thakur installed at Bhingarpur, through 23 named shebait marfatdars, and the suit was to recover a sum of Rs. 955-9-7 from the sons of a deceased karpardaz (agent) who is said to have retained that sum wrongfully out of moneys collected by him.

(3.) The suit was defended only on the ground of limitation, the defendants contending that limitation should run from the date of the receipt by their father of each item making up the sum claimed, and that Art. 62, Limitation Act, was the article applicable. The Courts below have found, however, that in fact there was no liability on the part of the deceased karpardaz to pay over sums received to the estate directly on receipt. There was running account, and the arrangement was that he should retain sufficient funds in his hands out of the collection for cost of litigation on behalf of the plaintiff for whom he held a general power of attorney. In the statement of account given in the plaint, it appeared that whereas the karpardaz had taken advances amounting to only Rs. 1563-7-7, he had actually expended as cost of suits during the material period a sum of Rs. 3703-4-9. Hence the. j article of the Limitation Act applicable was either Art. 89 or Art. 120, and in either case the claim was not barred, the suit having been brought within three years of the date of the karpardaz's death.