JUDGMENT
B.P. Beri, J.
1. This is an appeal directed against the judgment and decree, dated the 19th February 1959 of the District Judge, Jodhpur, in a suit for the recovery of a sum of Rs. 550 by way of compensation.
2. The circumstances which give rise to the present controversy are these: On 3rd July 1949 the plaintiff consigned a parcel containing cloth from Jodhpur to Bhinmal. The Anti-corruption Department suspected that the cloth contained in the parcel was mill-made or power loom manufactured and, therefore, it seized the same. Eventually on 25th May 1953 the Deputy Commissioner released the entire cloth. The plaintiff was informed of the same on 24th June 1953. Some cloth was returned to the plaintiff earlier but a part of the consignment remained undelivered despite demand. Therefore, the plaintiff instituted a suit on 5th July 1956 for the recovery of a sum of Rs. 527-12-0 by way of price of the cloth not delivered and Rs. 22-4-0 by way of interest. The learned Munsiff dismissed the suit holding it barred by time under Article 29 of the Indian Limitation Act, 1908. The plaintiff preferred an appeal. The learned District Judge, Jodhpur, concurred with the conclusions arrived at by the Munsiff and dismissed the appeal. The plaintiff has now come up in second appeal.
3. Learned counsel for the appellant argues that Article 29 of the Indian Limitation Act, 1908 is inapplicable because the seizure of the movable property was not under any legal process. He places his reliance on Shivrao Sheshgiri v. Secretary of State, AIR 1942 Bom 300 and Chetandas Gulabchand v. State of Bihar, AIR 1958 Pat 512. It is urged by him that it is Article 49 which would govern the case, failing which Article 120. On the other hand the learned counsel for the respondent argues that in the first place it is Article 29 which would be applicable in the circumstances of the case, failing which it will be Article 28.
4. Both the Courts have applied Article 29 of the Indian Limitation Act, 1908. It reads as follows:–
-"For compensation for wrongful seizure of movable property under legal process." One year. The date of the seizure.
The conditions for its applicability are (a) that it must be a suit for compensation (b) arising out of a wrongful seizure, (c) of immovable property, and (d) which seizure was under legal process. The learned counsel for the appellant strenuously urges that in the instant case it was not under a legal process that the goods were wrongfully seized. According to him in order to fulfil this condition contained in Article 29 a legal process must emanate from a Court of law. The seizure in the case before me urged the counsel was at the instance of the Anti-corruption Department of the Police. Therefore, it cannot be said that it was under a legal process. The
connotation of the expression “legal process” contained in Article 29 of the Limitation Act came to be considered by the learned Judges of the Bombay High Court in Shivrao’s case, AIR 1942 Bom 300. Beaumont, C. J. delivering the judgment of the Bench observed as follows:–
“I think ‘legal process’ denotes procedure by some sort of Court, and the Collector acting under Section 154, Bombay Land Revenue Code, is not acting as a Court. He is really acting as a creditor. He, as the officer entitled to recover arrears of land revenue, is given power to seize the defaulter’s goods. He is in a position analogous to that of a creditor who is given power under the contract to seize his debtor’s goods, if his moneys are not paid. If legal process merely means process according to law, it seems to me that seizure under a valid contract would be just as much seizure according to law as seizure under a statute. In my opinion, Article 29 only applies to seizure under a process issued by a Court. Possibly a revenue Court may issue legal process, but in my view the Collector was not acting in any sense as a Court when he seized these goods.”
In the Patna case the plaintiffs were dealers in textile goods. In 1945, there was restriction on the carriage of goods to Purnea by railway. Eighteen bales of cloth were sent to Nirmali railway station and the plaintiffs when went to take delivery of the goods on production of the railway receipts but under orders from the Additional District Magistrate of Saharsa, the railway receipts were seized by some local officers of the Government and they took delivery of the consignment. The plaintiffs instituted a suit for the recovery of the price of the cloth so seized. The question arose whether Article 29 of the Limitation Act was attracted. The learned Judges observed,–
“Article 29 provides for compensation for wrongful seizure of movable property under legal process. This too is inapplicable because there is no question of seizure of movable property under legal process in the present case. There was nothing due from the plaintiffs in realization of which the plaintiffs’ movable property was seized, such as a revenue officer taking recourse to distraint of the judgment-debtor’s properties for recovery of the amount of revenue or otherwise the use of the provisions of the Public Demands Recovery Act, etc.”
Article 29 was held not to be applicable.
5. The learned counsel for the respondent on the other hand places reliance on Man Singh v. Ram Nath, AIR 1924 All 828; Muthuswami Goundan v. Dhanushkodi Nadar, AIR 1950 Mad 734 and Jamshed Butt v. State Govt. of Madhya Pradesh, AIR 1957 Nag 71. In the Allahabad case, Piggott, J. considered a case of distraint under the Agra Tenancy Act pursuant to which seizure of movable property was effected. The learned Judge observed that it was a seizure of movable property under legal process because it was done under the special provisions of the Local Act and subject to the due observance of
the procedure therein laid down. In the Madras case, the plaintiff instituted a suit because the entire movable properties which were in a hotel owned by him were attached and removed. He instituted a suit for the recovery of the articles and for damages. The learned Judges observed that where the justification for the claim for damages is the wrongful seizure of the articles, such damages should be deemed to be compensation for such wrongful seizure and Article 29 would be applicable. In the Nagpur case, certain property was attached in a criminal case. One J filed objections which were allowed by the Magistrate to a certain extent. J filed a suit for the amount that was retained and also for damages for the illegal seizure of the property. The learned Judges expressed the opinion that in so far as it was founded on illegal seizure the case fell under Article 29 of the Limitation Act.
In the Allahabad case, the seizure was pursuant to the provisions of the Agra Tenancy Act. The learned Judge proceeded to consider the true meaning of the expression “legal process” and observed,–
“The right of distraint is a special right conferred upon land holders in this province by the provisions of the Tenancy Act. The right has to be exercised in accordance with law, and a land-holder who deviates from the provisions which regulate the whole process of distraint is liable to have to defend a suit for compensation under. .. . . .Section 146 of the Tenancy Act. A notice has to be served on the tenant……..”
Therefore, in the opinion of the learned Judge the distraint effected was pursuant to a legal process. In the first place this case is distinguishable from the one before me. The learned Deputy Government Advocate appearing for the respondent was unable to point out to any legal provisions pursuant to which the cloth parcel of the plaintiff was seized. Whether any procedure was prescribed for the purposes of exercising this process of seizure the learned Deputy Government Advocate was unable to show any law touching on the subject. The Madras case, is plainly a case where the attachment was issued pursuant to a legal process. In the Nagpur case, also it was pursuant to the provisions of the Criminal Procedure Code that the property was attached. In my opinion, therefore, the view taken by the Bombay High Court is preferable, and I am in respectful agreement with the same. Legal process envisaged by Article 29 must be issued by “some sort of Court” to borrow the phraseology of Beaumont, C. J. The Patna case, is nearer to the point and it has also taken the same view as the Bombay High Court. In my opinion, therefore, Article 29 of the Limitation Act is inapplicable to the circumstances of this case, and both the Courts below were in error in applying that article because the seizure was not under any legal process.
6. The next question then arises is as to which article would govern the circumstances of this case. Let me first examine Article 28 of the Limitation Act, as has been suggested by the learned counsel for the respondent. Article 28 reads as follows:-- "For compensation for an illegal, irregular or excessive distress." One Year. The date of the distress.
Article 28 applies in cases where compensation is claimed on account of taking the property of another without legal process. The word ‘distress’ gives the clue for the applicability of this article. By various statutes in force in our country the right to attach another’s property and take possession thereof is given to creditors. For instance land-holders had in certain cases the right to attach the movable property for arrears of rent. The Government or public bodies have under various enactments powers to attach any movable property in default of payment of revenue or public dues, and where the distrainer while exercising such a right oversteps the limits permitted to him under law, and compensation is claimed for this illegal or irregular or excessive distress, Article 28 would be applicable. It may be correct to say that Article 28 applies to cases where in the process of self-help a creditor exceeds his rights and compensation is claimed on that account. The case before me is clearly distinguishable. Suspecting the parcel to be containing prohibited articles the Anti-corruption Department seized the goods presumably for the purposes of investigation and not by way of any distress. In my view, therefore, Article 28 has no application to the facts of the case before me because it was not a case of distress.
7. The learned counsel for the appellant argues that it is Article 49 which should govern the circumstances of the case. The learned Deputy Government Advocate opposes its applicability. Article 49 reads as follows:–
“For other specific movable property, or for compensation for
wrongfully taking or injuring or wrongfully detaining the same.”
Three years.
When the property is wrongfully taken or injured, or when the detainer’s pessession becomes unlawful.”
A suit for obtaining possession of specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same is governed by this article. A part of cloth parcel has been detained by the Anti-corruption Department. The plaintiff does not say that it was wrongfully taken. The plaintiff’s case is that it has been wrongfully detained. He is, therefore, claiming compensation on account of wrongful detention of specific movable property and the period of limitation prescribed by this article is three years. In my opinion this article applies. The only question remains to be considered is the time from which the period began to run. If it is a suit for recovery of the specific movable property then it will be three years from the time when the property was wrongfully taken. If it is for compensation on account of the injury to the movable property then it will be within three years from the time when the property was so injured, and if it is for wrongfully detaining the property it will be from the time when the possession of the detainer became unlawful. The
simple question which survives for consideration is, when did the detainer’s possession become wrongful in the instant case? One of the events which constituted the bundle of facts constituting the cause of action as alleged by the plaintiff in his plaint is the date when the Deputy Commissioner informed the plaintiff by means of a letter, dated 24th June 1953 that the cloth detained be released. Any detention thereafter was plainly wrongful. Adding to this date a further period of two months as allowed by Section 15(2) of the Limitation Act for a notice under Section 80 of the Code of Civil Procedure the starting point of limitation would be the 24th of August 1953, The suit was instituted on the 5th July 1956 and is clearly within limitation under Article 49 of the Indian Limitation Act.
8. I, therefore, set aside the judgment and decree of the learned District Judge, accept this appeal and remand this case to the trial Court for proceeding with it in accordance with law. The case is an old one and the trial Court is directed to dispose it of expeditiously. The costs in this appeal shall be the costs in the cause.