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Calcutta High Court
Janakinath Singh Roy vs Bijoy Chand Mahatap Mahar … on 5 August, 1800
Equivalent citations: 60 Ind Cas 698
Author: E Fletcher
Bench: A Mookerjee, E Fletcher


JUDGMENT

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the plaintiff in a suit for recovery of money paid by him to the defendant as patni rent on the 14th October 1910,

2.It appears that the plaintiff purchased the patni at a sale held under Regulation VIII of 1819 on the 14th May 1908. The patnidar instituted a suit for cancellation of the sale, which was decreed on the 28th May 1910. The Zemindar-defendant thereupon preferred an appeal which was ultimately dismissed on the 2nd May 1912. In the interval, on the 14th October 1910 that is, after the Court of first instance had directed cancellation of the sale, the plaintiff paid rent to the defendant to prevent further sale under the Regulation, The present suit, which was instituted on the 14th February 1916, has been dismissed by the District Judge as barred by limitation. We are of opinion that this view cannot be successfully challenged.

3. The appellant has argued that he is entitled to a deduction of the time which was occupied by a proceeding for assess. ment of mesne profits as between himself and the original patnidar” on the basis the decree for cancellation of the sale This contention cannot be upheld in view of the provisions of Section 14 of the Limitation Article, which renders it sedentarily that the proceedings should be between the contesting parties; here the Zemindar was not a party to the proceedings for assessment of mesne profits. Nor can it be suggested that there was, since the 14th October 1910, any period of time when the right of the plaintiff to institute the-present suit was suspended by reason of circumstances over which he had no control so as to entitle him to invoke the aid of the rule recognised by the Judicial Committee in Prmnath Boy chouduy v. Rookea Begum 7 M.I.A. 323 : 4 W.B.P.C. 37 : 19 E.R. 331 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 692. Barce Sumo Moyee v. Shooshee Mookhee Burmonta 12 M.I.A. 244 : 11 W.B.P.C. 6 : 2 B.L.B.P.C. 10 : 2 Suth. P.C.J. 173 : 20 E.B. 331 : 2 Sar. P.C.J. 424. and Nriiyamoni Dassi v Lahhan chunder Sen 33 Ind.Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.E. 418 : 24 C.L.J. 1. 20 M.L.T. 10 (P.C.) The question thus arise?, which Article of the Limitation Act governs this matter. We are opinion that Article 62 applies to the circumstances of the case.

3. Article 62 provides that a suit for money payable by the defendant to the plaintiff for money received by the defend ant for the plaintiff’s use must be instituted within three yean, from the date. When the money is recieved. It has been pointed out in the derision of thee Judicial Committee in Rukum chand Boid v. firthichand Lal chowdhwy 50 Ind. Cas. 444 : 23 C.W.N. 721 : 17 A.L.J. 514 : 36 M.L.J. 557 : 21 Bom L.R. 632 : (1919) M.W.N. 268 : 30 C.L.J. 71 : 46 C. 670 : 26 M.L.T. 131 : 10 L.W. 416 : 46 I A. 52 (P.C.) that this Article is intended to apply to cases whish in English Law are described as suits for “money had and recieved.” The same view had been previously taken in numerous cases in this Court, amongst which may be mentioned Roghumoni Audhihari v. Nilmoni Singh Deo 2 C.393 : 1 Ind. Dec (N.S.) 541. and Mahomed Wahib v. Mohomed Ameer 32 C. 527 : 1 C.L.J. 167. The fact that there was a failure of consideration at the time the payment was made on the 14th October 1910, attracts the operation of the bar imposed by Article 62.

4. It has been suggested in the course of argument that Article 97 might apply to this case. That Article provides that suits for money paid upon an existing consideration which afterwards fails must be instituted within three years from the date of the failure. In the case before us, this Article does not apply, because, as we have just explained, at the time when the money was paid there was no consideration. But even if we held that the validity of the patni sale was finally decided only on the 2nd May 1912, as the result of the appeal by the Zemindar, still, the plaintiff would be entitled under Article 97 to sue only within three years from the 2nd May 1912. As he did not institute the suit until the 14th February 1916, even upon that view it would be barred by limitation. Bejoy chand Mahaiab v. Tinhari Banerjes 58 Ind. Cas. 741 : 24 C.W.N. 617.

5. The result is that the decree of the District Judge is confirmed and this appeal dismissed with costs.

Ernest Fletcher, J.

6. I agree.


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