RAM NARAIN Vs. BRIJ BANKEY LAL

JUDGEMENT

(1.) These are four connected appeals from orders of remand passed by Subordinate Judge of Meerut in four connected suits. In each of these suits the Court of first instance had dismissed the claim as barred by limitation. This finding has been reversed by the lower Appellate Court and the suits have been remanded for trial on the merits. The appeals before us are against the orders of remand, and I propose to limit my decision strictly to the point raised by the pleadings before us. The question, therefore, is not whether the plaintiff in these four suits has a good and effective cause of action against each set of defendants, but merely whether, assuming the plaintiff to have a cause of action, his remedy is barred by reason of the suits having been instituted beyond the period prescribed by law. The facts out of which this litigation arises are seem what peculiar. One Lala Sri Chand, who is the defendant-appellant in First Appeal from Order No. 76, brought a suit against Nityanand and Bhawani Sahai. The subject-matter of that suit is immaterial, but it was a claim for money. The plaintiff asked for the attachment before judgment of property belonging to the defendants, and he obtained an order for the attachment of the stock of grain in a certain grain pit. Inasmuch as Sri Chand s claim was eventually decreed, the. circumstance that the attachment, was effected before judgment becomes immaterial and I propose, hereafter to speak of the owners of the grain pit, Nityanand and Bhawani Sahai, as judgment-debtora and to discuss the case just as if there had been an ordinary attachment in execution of decree. The attachment of the grain was followed by an objection filed by one Manohar Lal. On enquiry the Court which had effected the sefzure of the grain came to this conclusion. It held that the grain was the property of the judgment-debtors from whose possession it had been seized, but that Manohar Lal, who had recently sold the same to these judgment-debtors, held a lien for his unpaid purchase-money to an amount exceeding Rs. 2,000. The order passed was that the attachment should continue subject to Manohar Lal s lien. Thereupon Sri Chand filed a suit for a declaration that Manohar Lal had no interest in the matter. It is to be noted that the grain, in question being a perishable commodity, an interim order bad been passed directing that it should be sold by auction and the auction-price held subject to the orders of the Court, The sale was effected for a sum of Rs. 1,809-14-6, which was less than the declared amount of the lien in favour of Manohar Lal. On the suit of Sri Chand, however, the Court which tried the same decided in his favour and gave him a declaration on the 25th June 1912, to the effect that Manohar Lal had no interest in the sum of the money above referred to as the sale price of the grain. In the meantime certain other creditors of the judgment-debtors had come in asking for a rateable distribution, the creditors in question holding decrees passed against the same judgment-debtors. These three sets of creditors are the defendants- appellants in First Appeals from Orders Nos. 109, 110 and 120 now before us. Sri Chand having been successful in his suit for a declaration, the various judgment- creditors now interested in the matter applied for rateable distribution of certain moneys in the possession of the Court belonging to these judgment-debtors. In this way the sum of Rs. 1,809-14-6 which represented the sale price of the grain was distributed amongst the four sets of decree-holders, along with certain other sums of money recovered from the same judgment-debtors. This distribution took place as follows: The payment to Sri Chand was made on the 19th September 1912; the payment to the appellants in First Appeal from Order No. 109 of 1916 was made on the same date; that in favour of the Allahabad Bank, Limited, the appellant in First Appeal from Order No. 110 of 1916, was made on the 2lst of September 1916 and, finally, the payment in favour of the appellants in First Appeal from Order No. 120 Of 1916 was made on the 26th of September 1912. In the meantime Manohar Lal had appealed against the decree in favour of Sri Chand in the declaratory suit, and this appeal had succeeded on the 24th of September 1912, the order of the Appellate Court then passed being one dismissing Sri Chand s suit. There was a second appeal to this Court, but the decision of the lower Appellate Court against Sri Chand was affirmed on the 30th April 1914. Manohar Lal had died in the meantime. The present plaintiff, Lala Brij Bankey Lal, who is his son and heir, brought these four suits to recover from each set of defendants so much of the money paid to them by the Court as the assets Of the judgment- debtors, Nityanand and Bhawani Sahai, as made up the item of Rs. 1,809-14-6. The plaintiff claimed that this money Was entirely covered by Manohar Lal s lien for unpaid purchase-money and that, in view more particularly of the course taken by the subsequent litigation, the creditors of Nityanand and Bhawani Sahai were not entitled to receive payment of this money from the Court and are liable to account to him for the same.

(2.) Now we come to the point of limitation which requires to be decided. The Court of first instance held that the suits were suits for compensation for wrongful seizure of moveable property under legal process, within the meaning of Article 29 of the First Schedule to the Limitation Act (IX of 1908). The lower Appellate Court has reversed this decision holding that the suits in question are not governed by this Article, or by any other specific Article of the Indian Limitation Act, and that they must be held to be governed by the six years period of limitation prescribed in Article 120 of the Schedule. Now the suits in question purport to have been instituted on the 11th of June 1915. According to the order of the first Court, they were actually instituted, three of them on the 3rd of July, and one of them on the 24th of July 1915. The precise date is not material, as the principle determining the question of limitation would apply equally to suits instituted in June or in July 1915. In any case the four suits were instituted within three years of the payments made by the Court to the four sets of decree-holders, but they were instituted more than one year, and also more than two years, from the dates of the aforesaid payments. The question, therefore, resolves itself into this, whether these suits can be held to be governed by any Article of the First Schedule to Act IX of 1908 anterior to Article 37, which is the first Article introducing the series of suits for which the prescribed period of limitation is three years. We have been referred to two Articles, namely, No, 29, relied upon by the Court of first instance, and No. 36. For the purpose of determining the appeals now before us, I think it sufficient to say that I am quite satisfied that neither of these Articles can be applied. There are quite a number of difficulties about applying Article 29. We have been referred to a good deal of case-law on the subject, some of which is undoubtedly conflicting. I do not propose, however, to go into this matter in detail, because, in my opinion, the case now before us is differentiated from any of the reported cases by one circumstance decisive in favour of the present plaintiff. The cause of action in the present case was not the seizure of the grain. That was not a "wrongful seizure" in any possible sense of the words. So far as the facts have been ascertained at present, the grain was the property of Nityanand and Bhawani Sahai at the time when it was seized. The creditors of these persons were hot under any obligation to enquire whether the purchase-money due to the vendor of the grain had or had not been paid. The seizure was effected before any decree had been passed in favour of Sri Chand; but to all intents and purposes, inasmuch as Sri Chand s suit was decreed, it was a lawful seizure in execution of property belonging to the judgment-debtors. It follows, therefore, that any cause of action which the plaintiff may have in the suits how before us related, not to the grain itself, or to its seizure from the possession of its lawful owners, but to the sum of Rs. 1,809-14-6 deposited in Court and to the payment of this money by the Court to the four sets of creditors. Apart, therefore, from the question whether the money thus deposited in Court could rightly be regarded as "moveable property" within the meaning of Article 29 aforesaid, the operation of that Article is excluded by the fact that there was never any "seizure" of this money within the meaning of the said Article. There has been some argument before us as to the meaning of the word "seizure," and we were asked not to treat that word as precisely equivalent to "attachment" or "taking in execution." It is quite possible that the word used in the Article is intentionally a wide one; but one thing seems clear, namely, that "seizure" implies the taking of something out of the possession of its owner. In the present case the money representing the price of the grain was from first to last in the custody of the Court, the Court conceived that it had realised the price of the grain and was holding it for the benefit of those persons who might hereafter be found to be entitled to it. According to the first decision arrived at, the Court s intention was to apply the sale-price of the grain, in the first instance, to the satisfaction of what it regarded as Manohar s lien for unpaid purchase- money and the surplus, if any, (as a matter of fact there was no surplus) to the satisfaction of any decree which might be passed in favour of Sri Chand. Later on, in consequence of the decision of the Court of first instance in the declaratory suit brought by Sri Chand, the Court determined that Manohar Lal had no claim to this money and proceeded to apply the sum to the satisfaction of the decrees held by Sri Chand and by the other three creditors now appellants before us. Under these circumstances, I am quite satisfied that there was never any "seizure" of this money within the meaning of Aricle 29 of the First Schedule to the Limitation Act and this Article is entirely inapplicable to the facts now before us. The only other Article on which the appellants could rely is Article 36, the "omnibus Article" which concludes the series of causes of action for which the prescribed period of limitation is two years. The description of the suits covered by this Article is for compensation for any malfeasance, misfeasance or non-misfeasance, in dependant of contract, and not herein specially provided for." In order to apply this Article, therefore, at would be necessary to hold that Sri Chand, or some other of the appellants now before us, had been guilty of malfeasance, misfeasance or non feasance in respect of this money. There is obviously no question of non feasance. Now what Sri Chand had done in the matter was to attach certain grain which was the property of his judgment-debtors and to ask the Court to sell it for his benefit. He had further prosecuted a suit for a declaration that Manohar Lal had no right in the sale-proceeds of the grain thus attached. Finally, it is to be presumed that he had applied to the Court to pay him his rateable share of this money, and he did withdraw the money under orders of the Court. The other three sets of defendants had merely applied to the Court to assert their right to rateable distribution in respect of any money which the Court might hold to the credit of their judgment- debtors. They too withdrew their rateable shares of money in dispute under the orders of the Court. As regards the appellants in First Appeal from Orders Nos. 110 and 109 of 1916, the money was actually withdrawn by them at a time when the only effective decision in the litigation which had taken place in respect of the attachment of this grain was the decree granting Sri Chand a declaration that Manohar Lal had no interest in this money. As regards the appellants in First Appeal from Order No. 120 of 1916, there is this distinction in the facts, namely, that they applied for their money while the decree in favour of Sri Chand was in existence; but they actually withdrew the money two days after that decree had been reversed and Sri Chand s suit dismissed by the Court of first appeal. I do not think any distinction against this particular set of defendants can be drawn by reason of this circumstance. If there was malfeasance or misfeasance on the part of the defendants in any of these suits, it was when they applied to the Court to pay them their rateable share out of this money. Their actual withdrawal of the money under orders of the Court, after a successful application, cannot, in my opinion, be regarded as malfeasance or misfeasance within the meaning of this Article. The question whe-there these four sots of defendants, having taken this money under the circumstances already set forth, remained under a liability to account for it to Manohar Lal, or to the present plaintiff after Manohar Lal s death, is one which goes to the merits of the four suits. It has not yet been considered in either of the Courts below by reason of the decision of the first Court on the limitation question. The only effect of the orders now under appeal is to direct the Court of first instance to consider this question, along with any other issues which may be raised by the pleadings before it. I pronounce no opinion on the point one way or the other. I am satisfied that the decision of the lower Appellate to Court on the question of limitation is correct and that the appeals now before us must fail. I would accordingly dismiss them with costs. Walsh, J.

(3.) I entirely agree with everything that my brother Piggott has said and in the order proposed. I think that the answer to Article 29 of the First Schedule to the Limitation Act cannot be better presented than in the very careful judgment of Mr. Justice Sundara Aiyar in the case reported as Yellammal v. Ayyappa Naick 16 Ind. Cas. 914 ; 23 M.L.J. 519 ; 12 M.L.T. 458 ; (1912) M.W.N. 1179. Dr. Sapru argued the point with his usual courage, and one may feel confident that everything possible that can be said has been said in support of Article 29. And it is to be hoped that the result of this discussion may be that attempts to apply Article 29 to circumstances to which it is not applicable may cease. I agree that we are not deciding, and it is not necessary to decide, either whether the plaintiff has any cause of action at all, or what Article is applicable to it. These are questions yet to be determined at the hearing of the suits. But I think it is possibly helpful to draw attention to one or two authorities which might throw light on the plaintiff s alleged cause of action. The general rule undoubtedly is that money paid under a void authority or under a void judgment to a person really not entitled to receive it can be recovered from him by the rightful owner in an action for money had and received. In this case it must be borne in mind that the judgment when the money was paid was still standing hut was subsequently set aside, and the question arises, by what right the recipient now claims to retain the money rightly paid, under a judgment now declared to be invalid. Considerable light is thrown upon this question by an interesting judgment of Stanley, C.J, in a case reported as Rajputar. a Malwa Railway Co-operative Stores Limited v. Ajmere Municipal Board 6 Ind. Cas. 401 ;32 A. 491 ; 7 A.L.J. 496. In that case the Municipal Board of Ajmere had levied on a trading company within Municipal Limits octroi duty beyond a sum which they were legally bound to pay. Stanley, C.J., and Banerji, J., held that the plaintiffs, the trading company, were entitled to recover the money in an action for money had and received for the use of the plaintiffs. The Chief Justice said this: "The language of Article 62 of the Statute of Limitation is borrowed from the form of count in vogue in England under the Common Law Procedure Act...The most comprehensive of the old Common Law counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff...It was a form of suit which was adopted when a plaintiff s money had been wrongfully obtained by the defendant, as for example, when money was exacted by extortion, or oppression, or by abuse of legal process, or when overcharges were paid to a carrier to induce him to carry goods or when money was paid by the plaintiff in discharge of a demand illegally made under colour of an office." A further very interesting judgment delivered not long ago by Lord Justice Kennedy is to be found in Ward & Co. v. Wallis (1900) 1 Q.B. 675 ; 69 L.J.Q.B. 423 ; 82 L.T. 261 ; 16 T.L.R. 193. That was a singular case and the decision which was generally accepted as correct, if it did not extend the principle, at any rate applied it to circumstances in which it had hitherto been supposed it would be difficult to apply it, The plaintiff had issued a writ against the defendant for a sum of money due for work done. Owing to a mistake he credited to the defendant on the writ a sum of Rs. 75 which be (the plaintiff) had in fact received from a man of the same name, but which had not been paid by the defendant. The defendant, knowing perfectly well it is true that the plaintiff was making a mistake, paid under pressure of the writ and the plaintiff gave him a receipt. It has always been held that money paid under pressure of legal process cannot be recovered at any rate until the legal process has been set aside. Lord Justice Kennedy held that although the money had never been received by the defendant except in the sense that it had been credited in his account and although it was a payment under colour of a perfectly valid legal process, nonetheless because it was against good conscience for the defendant to retain it, the plaintiff was entitled to recover it from the defendant as money had and received by him to the plaintiff s use. That is only one illustration of the general principle laid down by Sir John Stanley in the judgment referred to above. It seems to me it is quite possible that money paid under a valid judgment or in an equitable distribution under Section 73 to a person who, it afterwards appears, is not entitled to retain it, might in certain circumstances be recovered as money had and received to the use of the rightful owner.