JUDGMENT
Shambhu Prasad Singh J.
1. The main question which arises for decision in this second appeal by the defendant is whether the suit of the plaintiff is barred by limitation. Both the courts below have held that the suit is governed by Article 120 of the Indian Limitation Act (Act IX of 1908) and was instituted within time. According to the appellant, it was governed by Article 62 of the said Limitation Act which prescribes only a three years period of limitation and was thus barred.
2. Facts material for decision of the aforesaid question may briefly be stated. Late Rai Bhadur Kedar Nat’h and three others were proprietors of eight annas share in Mahal Mordih Kalaunda bearing tauzi No 3195/1 in pargana Maher, Thana Fatehpur in the district of Gaya and they were recorded as such in Register D. The Mahal comprised of four villages. The said eight annas share of the recorded proprietors was auction sold on 13-1-1947 for arrears of land revenue by the Collector of Gaya and was purchased by the plaintiff. After confirmation of the sale the plaintiff took delivery of possession on 26-9-1947. On 28-3-1949 the said share in the Mahal was sold for arrears of cess and was purchased by one Jadunandan Prasad. On 9-9-1949 Jadu-nandan sold his right, title and interest to the defendant by a registered sale deed. In the meanwhile the plaintiff had applied for mutation of his name in Register D and an order had been passed in his favour but his name could not be entered in Register D. On 10-10-1949 the Mahal was again sold for arrears of revenue amounting to Rs. 119/13/6 only and purchased by Sri Kant Lal, husband of the defendant, for Rs. 3,500.
The plaintiff took steps for setting aside that revenue sale but failed and on 27-10-1951 made an application for refund of the surplus sale proceeds in deposit with the Collector of Gaya. The plaintiff was not aware of the sale for arrears of cess in favour of Jadunandan Prasad and execution of a registered sale deed by him in favour of the defendant till then. The defendant too had made an application for refund of the said surplus sale proceeds and the Deputy Collector In-charge passed an order in her favour on 8-2-1952 and she withdrew the amount on 14-2-1952. The plaintiff’s petition for refund stood rejected. The plaintiff then applied for setting aside of the sale in favour of Jadunandan Prasad under Section 29 of the Public Demands Recovery Act. His application was allowed and the certificate sale was set aside by the order of the Certificate Officer dated 3-6-1963. The order of the Certificate Court was upheld in Certificate Appeal No. 162 of 1953 by the judgment of the appellate court dated 13-4-1954. After the order of the Certificate Officer dated 3-6-1953 the plaintiff made another application for refund of the surplus sale proceeds on 1-7-1953 but the same was also rejected by Deputy Collector In-charge on 15-12-1953 with an observation that the plaintiff’s remedy lay in Civil Court and he could recover the money withdrawn by the defendant only through Civil Court of competent jurisdiction. The present suit was instituted by the plaintiff on 1-12-1956 which is beyond three years from 14-2-1952 when the money was withdrawn by the defendant.
3. The plaintiff claimed a decree for Rs. 3,380/-/6, surplus of the sale proceeds of the revenue sale dated 10-10-1949, Rs. 1,196 as interest thereon at the rate of 12 per cent per annum from the date of the withdrawal upto the date of the suit, total Rs. 4,576/-/6 with future interest thereon and cost of the suit. The defendant contested the suit, her main defence being that the suit was barred by limitation and the claim for interest was untenable in law. Various issues, seven in number, including one of limitation were framed and it appears from the judgments of the two courts below that it was the issue on the question of limitation which was really pressed by the defendant before them. It may be stated here that the trial court allowed pendente lite and future interest only on the principal amount and not on the interest claimed and decreed from the date of the withdrawal till the date of the suit.
4. It is now well established that where one receives money to which he is not entitled in law, the person legally entitled to that money may maintain an action for recovery of the same from the former even though there is no contract or quasi-contract for such recovery (vide Bhagwati Saran v. Rai Kishunji, ILR 15 Pat 433: (AIR 1936 Pat 370). It also cannot be disputed that ordinarily such an action was governed by Article 62 of the Limitation Act of 1908, which, as already stated earlier, prescribed a period of three years for instituting such actions, the time from which such period of three years began to run being when the money was received. It has been so held in large number of case of which reference may be made to the cases of, Harihar Misser v. Syed Mohammed, reported in AIR 1918 Pat 54; Janaki Nath Sinha Roy v. Bejoy Chand Mahatab Bahadur, reported in AIR 1921 Cal 596; B. S. Venkatarama Ayyar v. K. T. Kuppuswami Ayyar, reported in AIR 1955 Mad 643; India Sugars and Refineries Limited v. Municipal Council, Hospet, reported in AIR 1943 Mad 191; and Biman Chandra Dutta v. Promotho Nath Ghose, reported in AIR 1922 Cal 157 (FB).
From the facts of these cases it, however, appears that the defendant in none of these cases could claim that on the date he received the money he was Ingally entitled to it. Therefore, there could be no doubt on the facts of these cases that on the date of the receipt the defendant must have received the money for the plaintiff’s use.
5. On the other hand, there are good number of cases where it has been held that when the defendants withdrew the money, they treated and received it as their own and not for the plaintiff’s use, the suit for recovery of such money would be governed by Article 120 and not by Article 62 of the Limitation Act of 1908. Reference in this connection may be made to decision of a learned single Judge of this Court in the case of Kapildeo Rai v. Gopal Dutt Mishra, reported in AIR 1961 Pat 195. The facts of the case were that the property of the plaintiff of that suit was being proceeded against in execution of a decree to which he was not a party and he deposited the entire decretal dues to save his properly. Thereafter he instituted a suit for setting aside the decree in execution whereof his lands were put up to sale. During pendency of the said suit the defendant withdrew the decretal dues deposited by the plaintiff. After the suit was decreed and the decree in execution whereof his lands were nut up to sale, was set aside he instituted another suit for recovery of the money withdrawn by the defendants.
Relying on Privy Council decision in the case of Gooroo Das Pyne v. Ram Narain Sahoo, reported in (1884) 11 Ind App 59 (PC) and other cases, the learned single Judge held that the appropriate Article for such an action was Article 120 and not Article 62 of the Limitation Act of 1908 In the case of the Municipal Board of Ghazipur v. Deokinandan Prasad, reported in ILR 36 All 555 = (AIR 1914 All 338), the plaintiff sued the Municipal Board for refund of octroi duty but did not allege that the duty had in the first instance been taken from him illegally; rather, his case was that he had, after payment thereof, become entitled to a refund and it was held that the suit was governed by Article 120 and not by Article 62 of the Indian Limitation Act, 1908. Reference may also be made to two cases of Madras High Court, Narayana v. Naravana, reported in (1890) ILR 13 Mad 437 and District Board of Ramnad v. Mahomed Ibrahim, reported in AIR 1933 Mad 524- In the latter case Madhavan Nair J. who delivered Judgment observed:–
“Article 62 cannot be appropriately applied to a case where the plaintiff is not entitled to the money when it was received by the defendant.”
It would thus appear that in cases of money received becoming, by subsequent events money received to plaintiff’s use, Article 62 of the Limitation Act of 1908 has no application. It follows, therefore, that if when defendant receives the money plain-tiff is not entitled to it by reason of an ad-verse judgment then existing against him, the mere circumstance that by the subsequent reversal of that judgment plaintiff became entitled to the money, would not make Article 62 applicable and in such cases Article 120 would apply.
6. There are cases of third category which lay down that where the transfer or the judgment on the basis of which the defendant received the money was void ab initio, the suit for recovery of money by the plaintiff would fall within the scope of Article 62. It was so held in Shanmuga Pilial v. Minor Govindasami, reported in (1907) ILR 30 Mad 459 where the assignment in favour of the defendant was held to be void and in Ram Kishan v. Bhawani Das, reported in ILR 1 All 333 (FB): where the judgment of the appellate fourt on the basis of which the defendant had received the money was held to be without jurisdiction as no appeal lay to it. In the latter case the suit for recovery of money was instituted within three years and the contention of the defendant was that it would be governed by one year’s rule of limitation which was rejected. Two of the Judges held that the suit would fall under Clause 118 of Schedule (ii) of the Limitation Act of 1871 which corresponds to Article 120 of the Act of 1908. Three of the Judges, however, observed that to them, from the substantial relief sought in the suit, it appeared that the suit was one for money received to the plaintiff’s use and would be governed by Clause 60 of Schedule (ii) of the Act of 1871 which corresponds to Article 62 of the Act of 1908. However, they further observed that if it was not a suit for money received for the plaintiff’s use then it fell under Clause 118 of that schedule of the then Limitation Act.
7. In the case before me the defendant received the money on the basis of the sale under the public Demands Recovery Act in favour of Jadunandan Prasad and so long that sale was not set aside it cannot be said that the defendant received the money to the plaintiff’s use. The defendant it appears withdrew the money and treated it as his own and not for the plaintiff’s use. Mr. Shambhu Barmeshwar Prasad. appearing for the appellant relied on the cases reported in AIR 1916 Pat 54, ILR 15 Pat 433= (AIR 1936 Pat 370), AIR 1921 Cal 596, AIR 199B Mad 643 and AIR 1943 Mad 191 which have already been referred to above. The rule laid down in these cases has got no application to the facts of the present case. Mr. Prasad also relied on a single Judge decision in the case of S.M.R. Shanmughan Chettiar v. Official Receiver West Tanjore, reported in AIR 1938 Mad 532. In this case it was held that if a man receives money which at the time he receives he is legally entitled to receive he can still be said to be receiving it for the use of some one else who may subsequently be declared to be entitled to the money by some judicial decision and does support the contention of Mr. Prasad; but the decision in the cast- is counter to the decisions reported in AIR 1961 Pat 195, ILR36 All 555 = (AIR 1914 All 338); (1890) ILR 13 Mad 437 and AIR 1933 Mad 524 and with all respects to the learned Judge, in my opinion the decision is not correct. In the case of A, Venkata Gurunatha Rama Seshayya v. Sri Tripura Sundari Cotton Press, Bezwada reported in ILR 49 Mad 468 = (AIR 1926 Mad 615) (SB)) it was also held that where the receipt by the defendant was not for the use of the plaintiff. Article 62 of the Limitation Act of 1908 could not be applied. The learned Single Judge who delivered the judgment in the case reported in AIR 1938 Mad 532, has not referred to this decision of the Madras High Court nor to the other two Division Bench decisions of the same court reported in (1890) ILR 13 Mad 437 and AIR 1933 Mad 524, which have already been referred to above.
8. Reliance was placed by Mr. Prasad on an averment in paragraph 7 of the plaint that the certificate proceeding was illegally taken out against the previous proprietor who was dead and as such was void ab initio and it was contended that in view of this averment in the plaint the appropriate Article applicable would be Article 62 and not Article 120. The defendant in paragraph 6 of his written statement however, challenged this assertion of the plaintiff and stated that the entire proceedings in the certificate case were perfectly valid, legal and within jurisdiction. As there were allegations and counter allegations it became necessary for the trial court to give its finding on this question as to whether the certificate sale in favour of Jadunandan Prasad was void ab initio and it has held that it was not so because Ext. 5(a) showed that legal representatives of the certificate debtors were substituted in the certificate proceedings and it was thus regularised under Section 11 and Section 52(1) of the Public Demands Recovery Act. Mr. Prasad did not advance any argument that this finding of the trial court was illegal. It appears that the finding was also not challenged before the court of appeal below. The appellant cannot, therefore succeed merely on the strength of plaintiff’s averment in paragraph 7 of the plaint that the sale was void ab initio when his own case was that it was not so and valid and legal. Thus it is not a case which is covered by the rule laid down in the cases reported in ILR 30 Mad 459 and ILR 1 All 333 (FB). In my considered opinion the Courts below have rightly held that the plaintiff’s suit was governed by Article 120 and not by Article 62 of the Limitation Act of 1908 and was within time.
9. Mr. Prasad also contended that in absence of a contract to pay interest or any demand by the plaintiff for the same the decree for interest from the date of the withdrawal till the date of the suit, was illegal. As in the plaint itself there is no assertion that the plaintiff ever gave notice to the defendant that interest would be claimed from him from the date of demand of the surplus sale proceeds until the time of payment, the question does not require any factual investigation and in view of the provisions of Section 1 of the Interest Act (Act XXII of 1839) the contention must succeed.
10. In the result, the appeal is partly allowed and the decrees of the two courts below are modified to the extent that there will be no decree for interest in favour of the plaintiff on the principal amount, i.e. the surplus sale proceeds, from the date of the withdrawal till the date of the institution of the suit. The decree for costs passed by the two courts shall also be reduced proportionately, in other respects the decrees are confirmed. As the defendant has not appeared in this court, there will be no order as to costs so far this court is concern.