CHEERATH VEETTIL KARNAVAN AND MANAGER MADHAVAN NAIR (DIED) CHEERATH VEETTIL PADMANABHAN NAIR L R Vs. ENASNARAYANA AIYAR, FAMILY MANAGER

JUDGEMENT

(1.) The first 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.

(2.) The first defendant is the Karnavan of the Cheerath tarwad and the second defendant is the karnavan of one of its tavazhis. One Gopalan Nair of the second defendant's tavazhi had taken a ticket in a kuri for Rs. 34,000 and after his death his tavazhi karnavan Achuthan Nair, who was also-the karnavan of the tarwad, continued to subscribe to the kuri. He mortgaged the immoveable 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, Trichur was instituted by the plaintiff's father for the sale of the mortgaged properties. Achuthan Nair being dead, the karnavans of the tarwad as well as of the tavazhi, the present defendants 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 first defendant alleging that on the death of Gopalan Nair the kuri right lapsed to the tarwad, instituted O.S. No. 27 of 1921 for the-recovery of the kuri amount in the Sub-Court, Palghat. The plamtiff'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 1921 on the file of the Sub-Court, Palghat, on the 16tb August, 1921. Against the order appointing the plaintiff's father as receiver the first defendant appealed to the Chief Court, Cochin. The appeal was allowed and the receivership, was cancelled by order of the appellate Court dated 22nd January, 1923. The plaintiff's father's right to continue O.S. No. 42 of 1921 having thus terminated, the second defendant herein applied in that suit to get himself transposed as plaintiff and his application was allowed. Afterwards, the second 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 22nd November, 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 .

(3.) 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. On the first contention he held that the suit was maintainable, but on the second he held that it was barred by limitation. In the result this 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 the 22nd January, 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 the 16 August, 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, 16 August, 1921 and 22nd January, 1923. On the question of limitation it was also argued before the District Munsif that the right to sue would accrue only on the date 19 November, 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 and that the lien subsisted till the date of the 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 any body's estate.