BINODE LAL CHAKRABURTTI Vs. PREO NATH CHAKRABURTTI

JUDGEMENT

(1.) IN our opinion, there can be no room for controversy that the view-taken by Mr. Justice Walmsley is amply supported by the authorities. The plaintiff instituted this suit for recovery of money in the alternative from two sets of defendants. He claimed arrears of rent from the tenant-defendants, and, alleged, at the same time, that if the entire rent had already been realised from them by his co-sharers, he was entitled to a decree as against the latter. This form of action is well known Sham Singh v. Kishun Sahai 6 C.L.J. 190; Aiyathurai Ravuthan v. Santha Meera Ravuthan 31 M. 252 : 18 M.L.J. 238; Yerukola v. Mudiya kamudu 4 INd. Cas. 34 : 19 M.L.J. 399 : 5 M.L.T. 282 : 6 M.L.T. 139. The Court of first instance found that the entire rent had been collected on the 4th November 1907 by the fourth defendant who was apparently the managing member of the family composed of the plaintiff and his co-sharers. The trial Court accordingly dismissed the suit against the tenant defendants and made a decree against the fourth defendant. Thereupon the fourth defendant appealed and argued that the claim, as against him, was barred by limitation, inasmuch as the rent had been collected by him on the 4th November 1907 and the suit had not been instituted till the 18th April 1911. The Subordinate Judge gave effect to this contention and dismissed the suit. That decree has been affirmed by Mr. Justice Walmsley on second appeal to this Court.

(2.) IT is plain that the case is governed by Article 62 of the first Schedule to the Indian Limitation Act. That Article applies to a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff s use. IT is now well settled that this Article is applicable even though the defendant at the time when he received the money did not intend to pay it to the plaintiff; the operation of the Article is attracted if it is established that the money received by the defendant is money which belongs to the plaintiff and is re- payable to him in justice, equity and good conscience. In support of this proposition reference may be made to the case of Mahomed Wahib v. Mahomed Ameer 32 C. 527 : 1 C.L.J. 167. The same view has been subsequently adopted in a long series of decisions and the rule embodied in Article 62 has been applied in a variety of cases more or less analogous in their circumstances to those of the case before us We may mention the decisions in Subbanna Bhatta v. Kunhanna Banta 30 M. 298 : 17 M.L.J. 224 : 2 M.L.T. 332; Shanmuga Pillai v. Minor Govindasami 30 M. 459 : 17 M.L.J. 452; Sanhunni Menon v. Govinda Menon 14 Ind. Cas. 254 : 37 M. 381 : 22 M.L.J. 485 : 11 M.L.T. 325 : (1912) M.W.N. 516; Baiznath Lala v. Ramadoss 26 Ind. Cas. 219 : 27 M.L.J. 640 : 1 L.W. 952 : 16 M.L.T. 509 : 39 M. 62 and Niader Singh v. Ganga Dei 35 Ind. Cas. 86 : 38 A. 676 : 14 A.L.J. 728. In our opinion, Article 62 is applicable to this case, and as the plaintiff has not sought the protection of Section 18 of the Indian Limitation Act on the allegation of fraud the suit has been rightly dismissed as barred by limitation. The appeal is consequently dismissed with costs.