1928 (6) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Barred by Sections 10, 11, and 92 of Civil Procedure Code (CPC)
2. Barred by Order 2, Rule 2 of CPC
3. Barred by Order 23, Rule 1, Sub-rule (3) of CPC
4. Limitation under Article 62 of the Limitation Act
5. Existence of an Express Trust under Section 10 of the Limitation Act

Detailed Analysis:

1. Barred by Sections 10, 11, and 92 of Civil Procedure Code (CPC)
The defendants argued that the suit was barred by Sections 10, 11, and 92 of the CPC. The trial court did not find merit in this argument. The District Judge also did not uphold this plea, focusing instead on Order 23, Rule 1, and Order 2, Rule 2 of the CPC.

2. Barred by Order 2, Rule 2 of CPC
The defendants contended that the claim was barred by Order 2, Rule 2, CPC, as the relief for a preliminary decree for accounts from 15th November 1906 had been unconditionally withdrawn in a previous suit (No. 142 of 1920). The trial court accepted this plea, but the District Judge disagreed, stating that the subject matter and parties of the two suits were different. The High Court, however, found that the withdrawal of the claim in the previous suit barred the current claim under Order 2, Rule 2, CPC.

3. Barred by Order 23, Rule 1, Sub-rule (3) of CPC
The trial court accepted the plea that the suit was barred by Order 23, Rule 1, Sub-rule (3), CPC. The District Judge disagreed, arguing that the parties and subject matter were different. The High Court, however, held that the unconditional withdrawal of the claim for accounts in the previous suit barred the present suit for the same period. The High Court emphasized that the rule in Order 23, Rule 1 is imperative and bars the institution of any fresh suit for the part of the claim that has been abandoned.

4. Limitation under Article 62 of the Limitation Act
The plea of limitation under Article 62 of the Limitation Act was raised by the defendants, arguing that the claim for accounts prior to 6th February 1921 was time-barred. Although this plea was not raised in the lower courts, the High Court entertained it, stating that the facts necessary to support the plea were apparent on the record. The High Court held that Article 62, which prescribes a three-year limitation period, was applicable, and thus the claim for accounts prior to 6th February 1921 was time-barred.

5. Existence of an Express Trust under Section 10 of the Limitation Act
The plaintiff argued that the defendants were 'express' trustees, and thus there was no time limit for a suit for accounts under Section 10 of the Limitation Act. The High Court rejected this argument, stating that the plaintiff failed to establish that the defendant was a person in whom property had become vested in trust for any specific purpose. The court clarified that an "express trust" requires explicit terms indicating that the legal and beneficial ownership is held by different juridical entities. The court concluded that the shebaits were not trustees in the technical sense under the Limitation Act, and thus Section 10 did not apply.

Conclusion:
The High Court allowed the appeal, set aside the decree of the District Judge, and restored the preliminary decree passed by the trial court dated 31st October 1924. The appellants were entitled to their costs in both the High Court and the lower court.