CHEERATH VEETIL KARNAVAN Vs. ENASNARAYANA AYYAR

JUDGEMENT

(1.) The 1 defendant is the appellant. The second appeal arises out of a suit instituted by the plaintiff to recover the money spent by his deceased father as Receiver in the following circumstances. The 1 defendant is the karnawan of the Cheerath tarwad and the 2nd defendant is the karnawan of one of its tavazhis. One Gopalan Nair of the 2nd defendant's tavazhi had taken a ticket in kuri for Rs. 34,000, and after his death his tavazhi karnawan Achuthan Nair who was also the karnawan of the tarwad, continued to subscribe to the kuri. He mortgaged the immovable properties belonging to the tarwad lying in the Cochin. State and this kuri right to the plaintiff's father for a sum of Rs. 10,000, O.S. No. 79 of 1095, on the file of the District Court of Trichur, was instituted by the plaintiff's father for the sale of the mortgaged properties. Achuthan Nair being dead, the karnawans of the tarwad as well as of the tavazhi the present defendants Nos. 1 and 2, were parties to the suit. Pending its disposal the plaintiff's father was appointed Receiver by the District Court of Trichur for the purpose of realising the kuri amount. During the pendency of the Receiver application, the 1 defendant alleging that on the death of Gopalan Nair the kuri right lapsed to the tarwad, instituted O.S. No. 27 of 1931, for the recovery of the kuri amount in the Sub-Court, Palaghat. The plaintiff's father was impleaded as a party to that suit. As he got himself appointed Receiver , the plaintiff's father also filed a suit for the recovery of the kuri amount, O.S. No. 42 of 1911, on the file of the Sub-Court, Palaghat, on August 16, 1921. Against the order appointing the plaintiff's father as Receiver the 1 defendant appealed to the Chief Court, Cochin. The appeal was allowed and the receivership was cancelled by order of the Appellate Court dated January 22, 1923. The plaintiff's father's right to continue O.S. No. 42 of 1921, having thus terminated, the 2nd defendant herein applied in that suit to get himself transposed as plaintiff and his application was allowed. Afterwards, the 2nd defendant herein came to terms with respect to O.S. No. 27 of 1921, which as a result was decreed with costs, and O.S. No. 42 of 1921, was dismissed. The plaintiff's father's right to recover costs incurred by him as Receiver in filing O.S. No. 42 of 1921 was reserved in the order passed in that suit. The plaintiff's father having died, the present suit was instituted by the plaintiff on November 22, 1926, to recover, as already stated, the money spent by his father for the purpose of conducting O.S. No. 42 of 1921, as Receiver.

(2.) On behalf of the present appellant two main contentions were urged before the District Munsif, namely. (1) that the suit was not maintainable, and. (2) that it is barred by limitation.

(3.) On the first contention he held that the suit was maintainable, but on the second he held that it was not barred by limitation. In the result the suit was dismissed. On the second contention it was argued before the District Munsif that either Art. 61 of the Limitation Act or Art. 83 applied to the suit. He held that the article applicable was Art. 83 of the Limitation Act and that the cause of action commenced on January 22, 1923, the date when the Receivership was terminated, when in his opinion the Receiver became entitled to indemnity from the estate. If Art. 61, applied the cause of action arose on August 16, 1921, the date when costs were incurred; but the District Munsif thought this article would not apply. As was pointed out by him, the suit was barred by limitation whichever Art. 61 or 83, applied, the suit having been filed admittedly more than three years after the dates August 16, 1921, a January, 22, 1923. On the question of limita-tation it was also argued before the District Munsif that the right to sue would accrue only on date November 19, 1924, when the suit O.S. No. 42 of 1921 was dismissed by the Court, the argument being that the Receiver has a lien on the estate for the amounts due to him that the lien subsisted till the date of disposal of the suit. This argument was disallowed on the ground that the Receiver was never in possession of any properties and that he could claim neither a lien nor a charge on the special circumstances of the case; and that what he could claim was only an indemnity as he had not been authorised to spend money on behalf of anybody's estate.