LAKHPAT PANDEY Vs. JANG BAHADUR PANDEY

JUDGEMENT

(1.) IN the suit out of which this appeal arises the plaintiff alleged that he was entitled to one-third of the amount of certain bonds which stood in the name of the defendants or some of them. So far as this allegation is concerned it is correct, because the plaintiff had previously obtained a declaration to that effect from the Civil Court in a suit. He then alleged that the defendants had secretly realised the amounts of these bonds. The Court below has found that the defendants did recover on foot of the bonds. This being so, the plaintiff was clearly entitled to recover his share of the money realised or paid on foot of the bonds, provided he sued in time. The Court of first instance decided against the plaintiff upon the ground that he was bound to put forward his claim in the previous suit. The plaintiff appealed and the Court below has held that the view taken by the Court of first instance on this point was erroneous. IN this we quite agree. The present appeal challenges the decree of the lower Appellate Court upon the ground that the suit was barred by limitation. We think that Article 62 of the Limitation Act is the Article applicable to a suit of this nature. The period of limitation prescribed is three years from the time when the money was received. IN the present case the money was received more than three years before the institution of the suit. Therefore, the plaintiff s suit is barred unless he can call to his aid the provisions of Section 18, which provides that if the knowledge of his right to institute the suit has been kept from him by the fraud of the defendant, then time shall run from the date when the fraud first became known. IN this connection we may mention that the defendants even in the present suit denied that they had even then got the money. We have looked through the evidence and we find that the plaintiff did adduce evidence that he only obtained knowledge about two years before the institution of the suit. He expressly pleaded that the realisation of the money had been fraudulently concealed from him. The fraud of concealment seems to have been persevered in even up to the time the present suit was instituted, Under the circumstances we think that the plaintiff is entitled to the benefit of Section 18, and the reason why the plea of limitation was not urged in the lower Appellate Court was that the defendants knew that it was impossible to deny that knowledge of the realisation of the money had been fraudulently kept from the plaintiff. We dismiss the appeal with costs, including in this Court fees on the higher scale.