LACHMI NARAIN Vs. DHANUKDHARI PROSAD SINGH

JUDGEMENT

(1.) THE plaintiffs and the defendant No. 2 were mortgagees of a certain revenue paying estate. In execution of the mortgage-decree obtained by the plaintiffs, they purchased one of the mauzahs situated in the estate named Khazaserai on the 19th May 1900. On the 7th January 1901, the entire estate, consisting of Khazaserai and another lekhiraj property Patirha, was sold for arrears of Government revenue. After payment of the arrears, a surplus of about Rs. 2,454 was left with the Collector and the defendant No. 1 who was the registered owner withdrew the surplus on the 31st March 1904. On the 2nd July 1905, the plaintiffs applied to the Collector for the payment of the surplus to them as representing the mortgaged property which they had already purchased in execution of the mortgage-decree. This application was rejected on the 4th August 1909 on the ground that the money had been paid out to the registered proprietor. THE plaintiffs brought his suit on the 23rd May 1907 for the recovery of the money from defendant No. 1. THE principal plea was that the suit was barred by limitation. Both the lower Courts have held that the suit is barred under Article 62 of Schedule 1 of the Limitation Act. It is contended before us that the suit is not one governed by Article 62 but that the Article properly applicable to the present case would be either 142 or 132 or 120. Article 62 contemplates a suit for money payable by the defendants to the plaintiffs for the money received by the defendants for the plaintiffs use and provides three years as the period of limitation from the time when the money is received. THE question to be first determined on this point is whether the money was received by the defendants for the plaintiffs use. Although, in common parlance, it may be said that the defendants took out the money for his own use and not for the plaintiff s, yet the words "for the plaintiff s use" have received judicial interpretation almost in all the High Courts, in which it has been held that money received by the defendants, which belonged to the plaintiffs, would be money received by the defendants for the plaintiffs use. THE latest case on this point is Mahomed Wahib v. Mahomed Ameer 32 C. 527 : 1 C.L.J. 167 in which all the previous cases on the point have been considered. We think that this case would, according to the principles laid down in the case, be governed by Article 62 of Schedule II of the Limitation Act. It is con tended that there is another class of cases, in which it has been held that when a suit is filed for recovery of money charged on immoveable property, when the immoveable property is represented by surplus sale-proceeds, the suit is governed by Article 132 of the Schedule. THE facts of the present case are, however, distinguishable from those cases in that in the present case the plaintiffs had already made a purchase in execution of their mortgage-decree so that they cannot be said to be seeking to pursue against the surplus sale-proceeds, the remedy for the recovery of the money charged upon the immoveable property.

(2.) IN this view of the case, the appeal must be dismissed with costs.