CHAUDHRI NIADER SINGH Vs. MUSAMMAT GANGA DEI

JUDGEMENT

(1.) This case has been thoroughly argued. But really the point is hardly open to discussion. The plaintiff sues to recover from the defendant certain money which has been received by the defendant, in the form of rent paid to the defendant through the Court under a decree entitling the defendant to receive such rent as against tenants, but id respect of property of which the plaintiff was entitled to possession, and also to receipt of rents. It is suggested that for such an action the Limitation Act provides one year s limitation by reason of the terms of Article 29, that is to say, it is an action for compensation for wrongful seizure of moveable property under legal process, It is nothing of the kind. The moment one appreciates you apply the test of the distinction between tort and contract, all difficulty disappears. Assuming for a moment that such money can be moveable property, it is obvious that it has never been in the possession of the plaintiff at all. Compensation for wrongful seizure is another way of stating a claim for damages for tort in detinue or trespass. There can only be wrongful seizure when the property was in the possession of the person who is setting up the wrong. An action for detinue involves proof of right to actual possession, and of deprivation of possession. In the case now before the Court there is no seizure; there, is no tort, that is to say, there is nothing wrongful in the sense in which it is used in the Article. There is no claim for compensation, and 1 very much doubt whether rents payable under these circumstances are moveable property at all. It is quite clear that money received by B from a third person to which A is rightfully entitled is money which, from the date of its receipt by B, B is under an implied contract to pay to A. The cause of action which A has for that implied contract has always been known to the Common Law as an action for money had and received by the defendant for the use of the plaintiff. That is what the present suit is really for, and Article 62 of the first Schedule to the Limitation Act is the appropriate Article. The decision in Jagjivan Javherdas v. Gulam Jilani Chaudhri 8 B. 17 is bad law. The appeal must be dismissed with costs. Sundar Lal, J.

(2.) I am of the same opinion.

(3.) The appeal is dismissed with costs.