DAMARAJU NARASIMHA RAU Vs. THADINADA GANGARAM

JUDGEMENT

(1.) The question for determination in this appeal is whether the plaintiff's suit is barred by limitation. For the purpose of this question the material facts and dates are as follows: Defendants Nos. 1 to 3 brought a suit against the 5 defend, ant, and on December roth 1899 attached certain paddy before judgment. The plaintiff put in a claim petition with respect to the paddy. On March 8th, 1900, this petition was dismissed. On March 26th, 1900, the plaintiff brought a suit under Section 283 of the Civil P. C. to establish his right to the property. On November i8th, 1901, he obtained a declaration as to his right. On February 7th, 1903, this declaration was affirmed on appeal. In the meantime, the property had been sold by the Court, and on May 15th, 1900, the proceeds had been distributed to the defendants, the 4 defendant having received his share as a party entitled to rateable distribution. On June 1 1903, the present suit for a refund of the money by the defendants was instituted. The plaintiff contends that time began to run from the date of the distribution of the proceeds of the sale of the attached property. If this is so, and the period of limitation is 3 (three) years-deducting (as it is conceded the plaintiff is entitled to deduct) the time when the Court was closed - the suit is in time.

(2.) The Munsif held that time began to run from the date of the attachment (December 10th 1899), that the article of the 2nd Schedule to the Limitation Act which applies was Art. 49, and that the suit was time-barred. The District "Judge held that the question of limitation was governed either by Art. 49 or Art. 36 and affirmed the Munsif's decree. The lower Courts have dealt with the case on the footing that the attached property was moveable property, and I deal with the case on the same footing. My view is that the appropriate Art. is Article 29, since this is the only Art. which refers specifically to wrongful seizure under legal process. This was the view taken by this Court in Murugesa Mudaliar V/s. Jattaram Davi (1900) I.L.R. 23 M. 621. I do not think this Art. should be construed as not applicable where the plaintiff seeks only to recover the value of property seized or the sale proceeds if the property has been sold, and as limited to claims for consequential damages. This is obviously not the sense in which the word is used in Articles 30 and 31, and I do not see why it should be construed in this restricted sense in Art. 29. If Art. 29 applies, the law is express, and the time is one year from the date of the seizure. No doubt Section 283 of the Code makes provision for a special procedure whereby a claimant to property which has been seized in execution may establish his right, but I fail to see how the provisions of this section can have the effect of postponing the time when limitation begins to run, or suspending the time which has begun to run, when the Limitation Act makes express provision in the matter.

(3.) Further I can see no good ground for holding that time does not run so long as the property remains in custodia legis. The damage to the plaintiff is the seizure of his property. True, he may eventually succeed in showing the property is his, and in the meantime the property is safe, but he is none the less, damaged by being deprived of the enjoyment of his own property. The measure of damages is, of course, a different matter. If he brings suit after his property has been restored to him, and his suit is in time, he can of course only recover damages on the footing that he has not been permanently deprived of his property. If he" has already recovered damages on the footing that he has been permanently deprived of his property, and it is afterwards determined that the property is his, or the plaintiff's suit is ultimately dismissed, a question may arise, as to what order, the Court, ought to make with regard to the disposal of the attached property or the proceeds thereof if it has been sold; but I do not think this is a question which can be taken into consideration in construing the plain language of an enactment.