UMRAO SINGH Vs. RAM NARAIN

JUDGEMENT

(1.) The only question in this appeal is whether the claim of the plaintiff respondent is barred by the law of limitation and what is the article of the second schedule to the Limitation Act which governs the case. The suit was one for compensation and was brought under the following circumstances. Deokinandan, defendant, brought a suit for recovery of the amount of two promissory notes, alleged to have been executed in favour of Ram Narain, appellant, by one Chunni Lal, against the sons of Chunni Lal, and caused a cloth shop kept by the plaintiff to be attached before judgment on the 29 of November, 1902. Ram Narain had assigned the promissory notes to Deokinandan. The shop of the plaintiff remained under attachment till the 20 May, 1903, when the suit was dismissed. On the 17 of January, 1905, the present suit was brought for compensation for loss of profit, servants wages and rent of the shop, and for damage to the cloth locked up in the shop during the period of the attachment. The defendants were Deokinandan and the appellant Ram Narain. It was alleged that the latter fictitiously transferred the promissory notes to the former and was the person who in fact had brought the suit on the promissory notes and caused the attachment to be made. It was contended on behalf of Ram Narain that the suit was barred by limitation under Art. 29. The Court of first instance held that the article applicable was Art. 36; that the wrong done to the plaintiff was a continuing wrong within the meaning of Section 23 of the Limitation Act, and that the claim was within time. That Court decreed the suit and the decree has been affirmed by the lower appellate Court, which was of opinion that Art. 49 governed the suit. Ram Narain has preferred this appeal. It is contended on his behalf that the article applicable is Art. 29, the suit being one for compensation for wrongful seizure under legal process and that the limitation should be computed from the date of attachment.

(2.) The contention appears to me to be valid. Art. 36 of the second schedule is a general article governing suits for compensation for torts to which no special article applies. Art. 29 provides for suits for compensation for wrongful seizure of moveable property under legal process, and if the present suit is one of the description mentioned in that article it cannot be governed by Art. 36. The plaintiff's allegation is that in a suit brought against the sons of Chunni Lal his shop was attached before judgment by actual seizure. This seizure is said to have been wrongful and the damages claimed are in respect of the seizure. It is true that the damages claimed do not consist of the value of the articles attached, but are damages which are alleged to have been sustained as a result of the attachment. This, however, does not seem to make any difference. As observed by the Madras High Court in Murugesa Mudaliar V/s. Jattaram Davy (1900) I.L.R., 23 Mad., 621: " Art. 29 is quite general in its terms and was intended to apply to all cases where the alleged wrongful seizure was made under legal process." In Multan Chand Kanyalal V/s. Bank of Madras (1903) I.L.R., 27 Mad., 346 in which compensation was claimed for deterioration in the quality and diminution in the quantity of certain jaggery attached at the instance of the defendants, the same High Court held that Art. 29 applied. The present suit being one for compensation for wrongful seizure under a process of Court, it is governed by Art. 29, which is a special article providing for such a suit. Art. 49 has, in my opinion, no application to a suit of this description. It clearly applies to a case in which moveable property is wrongfully taken or detained by the defendant and not by the Court in execution of a legal process. The Court of first instance in support of its view that Art. 36 applied to the case relied on the ruling of the Bombay High Court in Surajmal V/s. Manekchand 6 Bombay Law Reporter, 704. That, however, was a case in which attachment was made not by actual seizure but by the issue of a prohibitory order under Secs.484 and 268 of the Civil P. C.. It was on this ground that Batty J., held that Art. 36 and not Article 29 applied. In Ram Singh Mohapttur V/s. Bhottro Manjee Sonthal (1876) 24 W.R., 298, which was a suit for compensation for the wrongful seizure of the plaintiff's bullocks in execution of a decree against a third party, Art. 30 of Schedule II of Act No. IX of 1871, which corresponded to Art. 29, Schedule II of Act No. XV of 1877, was held to apply, and it was also held that limitation ran from the date of seizure. As the suit of the present plaintiff was brought after the expiry of more than one year from the date of the seizure it was barred by limitation. As the suit was instituted after one year even from the date of the release of the property, it is unnecessary to consider whether Section 23 of the Limitation Act applied and whether this was a case of a continuing wrong. Had I to decide that question. I should have considerable difficulty in holding that it was a continuing wrong, as the wrong to the plaintiff was complete as soon as his goods were seized. That the intention of the Legislature was not to make Section 23 applicable to such a case is indicated by Articles 19 and 42 under which limitation is to be computed from the date of the cessation of the wrong.

(3.) For the above reasons I am of opinion that this appeal must prevail, the claim being time-barred. I accordingly allow the appeal, set aside the decrees of the Courts below, and dismiss the suit with costs in all Courts.