BAIJNATH LALA Vs. RAMDOSS

JUDGEMENT

(1.) The questions for determination in this second appeal are (1) whether the Lower Courts are right in holding that Article 62 and not Article 120 of the Schedule to the Limitation Act applies to the facts of this case, (2) whether even if Article 62 applies the suit is still in time by virtue of a deduction to which the plaintiff claims to be entitled with reference to Section 14 of the Limitation Act and (3) whether the Lower Court should have allowed the plaint to be amended so as to enable plaintiff to raise the second point.

(2.) The plaintiff, who is the appellant before us, brought the suit from which this second appeal arises under Section 73 of the Code of Civil Procedure, his application for rateable distribution as against the defendant in respect of certain assets in Court deposited- by a third party against whom both plaintiff and defendant had obtained decrees having been refused by the District Court of North Arcot on 18th October 1905. The defendant drew the money in question on 19th October 1905. The plaintiff filed a Revision Petition in the High Court to set aside the order of the District Court on 21st December 1905. That petition was dismissed on 12th December 1906. The present suit was filed on 11th December 1909. If Article 120 applies to the case the suit is in time in any view but if Article 62 is to be applied it will be barred unless the plaintiff can shew he is entitled to deduct the excess period by virtue of Section 14 of the Limitation Act.

(3.) Now, Article 120 can only be applied when there is no other article of the Limitation Act applicable. In support of the view that Article 62 is the proper one to apply, the cases of Vishnu Bhikaji Phadki v. Achut Jagannath Ghate (1890) I.L.R. 15 B. 438. Shankar Sarup v. Mejomal (1901) I.L.R. 23 A 313. Mahomed Wahib v. Mahomed Ameer (1905) I.L.R. 32 C. 527 and Shanmuga Pillai v. Minor Govindasami (1907) I.L.R. 30 M. 459 have been relied on both here and in lower Court. The first case is direct authority on the point. The suit in that case was brought under Section 295 of the Code of 1882 which corresponds to Section 73 of the present Cpde and it was held that such a suit falls under Article 62, the case of Moses v. Macferlan (1760) 97. E.R. 676 being referred to evidently as authority for the position that the suit was one for money received for the plaintiff s use. The decision in Vishnu Bhikaii v. Achut Jagannath Ghate (1890) I.L.R. 15 B. 438 is referred to with approval by the Privy Council in Sankara Sarup, v. Mejomal (1901) I.L.R. 23 A 313 upon the question whether a suit under Section 295 is a suit to set aside the order of the Court passed under that section and it was held that it was not such a suit and that therefore Article 13 of the Limitation Act would not apply. It was only upon that point that the case was referred to and the decision of that point was sufficient for the purposes of the case. Their Lordships expressed no opinion as to whether the proper article to apply was Article 62 or Article 120 and the case (though so far as it goes it supports the lower Court s view) cannot be regarded as direct authority upon that point.