YELLAMMAL Vs. AYYAPPAN NAICK

JUDGEMENT

(1.) The question for decision in this second appeal is whether the plaintiff s suit is barred by limitation. The facts on which the question has to be decided are not disputed. The 4th defendant obtained a decree against one Perumal Naick in Original Suit No. 37 of 1904. In execution of that decree, she attached, on the 1st of July 1905, a debt due to Perumal Naick from the 1st defendant in connection with a chit fund. The 1st defendant, after the debt became payable to Perumal on the 29th July 1905, paid the money into Court on the 15th June 1905, having obtained an order permitting him to do so on the 6th November 1905. The plaintiff pat in a claim petition objecting to the attachment and asserting that the debt was payable to himself by virtue of an assignment made to him by Perumal prior to the 4th defendant s attachment. The claim petition was rejected. He then instituted a suit, Original Suit No. 458 of 1905, under Section 283 of the Civil Procedure Code to establish his right to the debt. In the meanwhile, the 4th defendant, on the 3rd November 1906, drew from Court the money which had been deposited by the 1st defendant. The plaintiff s suit, Original Suit 458 of 1905, was dismissed by the Court of first instance but he obtained a decree on appeal. The present suit for the recovery of the money drawn by the 4th defendant from Court was instituted in 1908 within three years after it Was drawn by the 4th defendant.

(2.) Both the lower Courts have held that the suit is not barred by limitation. The Subordinate Judge is of opinion that Article 62 or 120 of the 1st Schedule to the Limitation Act is applicable to the case.

(3.) The contention in second appeal is that the suit is governed by Article 29. That Article is in these terms,- For compensation for wrongful seizure of moveable property under legal process." The period fixed is one year from the date of the seizure. The 4th defendant had several difficulties to overcome before she could make out that this Article is applicable. Was the debt seized under legal process? Was the alleged seizure of any moveable property? Is the suit one for compensation, and, if so, is it one for compensation for wrongful seizure? If any one of these questions is answered in the negative, the contention must fail. I shall deal with each one of them in order.