KRIPA RAM Vs. KUNWAR BAHADUR

JUDGEMENT

(1.) This is a defendant's appeal from an order of remand. The plaintiff alleged that he had brought a suit against Sewa Ram and got certain sugar and treacle belonging to his debtor attached before judgment. The present defendant, Kripa Ram, filed an objection to the attachment of the sugar and treacle claiming them as his own property; but his objection was dismissed in April 192G and the plaiutiff's suit was decreed. Thereupon the present defendant filed another suit for a declaration of his title to the properties attached, but that suit failed. According to the plaintiff, the defendant obtained a stay order during the pendency of his declaratory suit, and in collusion with the cnstodian of the property, who had been appointed by the Court, and the judgment debtor he dishonestly removed the sugar, sold the same and misappropriated the sale proceeds. This misappropriation was alleged to have taken place in May or June 1926. The plaintiff filed a complaint in the criminal Court on 27 July 1926, which however proved infructuous. He then filed his suit on 29 July 1929, the 27 and 28th July being holidays.

(2.) The claim was resistsd on merits, as well as on the ground of limitation and absence of cause of action. The trial Court, without going into the facts, dismissed the suit on the plea of limitation alone, holding that Art. 49, Limitation Act, applied and the claim was more than three years after the misappropriation.

(3.) On appeal the lower appellate Court has come to the conclusion that neither Art. 48 nor Art. 49, nor even Art. 36, Limitation Act, applies, but that the residuary Art. 120 applies and the claim was within time. It has accordingly sent the case back to the trial Court for decision on the remaining issues.