DANDU SIVARAMARAJU (DIED) DANDU RAGHUNATHA RAJU, LEGAL REPRESENTATIVE OF THE DECEASED Vs. SECRETARY OF STATE FOR INDIA INCOUNCIL REPRESENTED BY THE COLLECTOR

JUDGEMENT

(1.) The point for decision in this appeal is whether the plaintiff--appellant's suit is governed by Art. 62 of the Limitation Act, in which case it is time barred, or by Art. 120, in which case the suit will be in time.

(2.) The appellant was auction-purchaser at a Court-sale of certain items of property sold by defendants 5 to 10 in execution of a decree obtained by them in a Rent suit against defendants 3 and 4. The date of the sale was 25 September, 1918, and it was confirmed on 11 December, 1918. The purchase price was Rs. 2,525 which was duly deposited in Court. In the meantime a stranger in these proceedings had brought a suit O.S. No. 723 of 1918, for recovery of possession, alleging that in as much as the judgment-debtors had already sold the lands to him they had no saleable interest in the land, and that there were irregularities in the sale to the appellant. This suit was decreed on 15 December, 1919, the Court holding that there were irregularities in the conduct of sale sufficient to set it aside. A prohibitory order had been obtained against the Deputy Collector that he should not part with the purchase-money deposited by the appellant. But this order expired on 20 November, 1918 and a payment of Rs. 1,200 odd was made to the defendants in July, 1919. In consequence of the decree setting aside his sale the appellant on 30 April, 1920, put in a petition to the Court of the Deputy Collector for a refund of the purchase-money. In reply he was informed on 1 November, 1920, that the money had been paid to the decree-holders towards the decretal amount. A further petition was made on 18 December, 1922, but this was rejected. As a matter of fact, only half of the purchase money had been paid away and the statement that all had been paid was a mistake of the Deputy Collector.

(3.) The appellant filed his suit on 6 July, 1925. The plaint does not say in so many words that the claim is for money payable by the defendants to the plaintiff for money received by the defendants for the plaintiff's use. But that is the substance of the claim set out in his pleadings. The basis of a suit for money had and received will be found described in Bullen and Leak's Precedents of Pleadings (8 Edition), p. 265 thus: When a person receives money which injustice and equity belongs to another, as a rule a debt is created and the money can be recovered by an action for money received to the use of the plaintiff.