9911796707
TMI Blog1952 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of refunding half to plaintiff and defendant No. 2 and the other half to defendant No. 1, the State refunded the whole amount to defendant No. 1. On April 6, 1943, the plaintiff filed the suit claiming on his behalf and on behalf of defendant No. 2 the half share, viz, ₹ 291-3-2. The trial court dismissed the plaintiff's suit holding it was barred by limitation. The learned District Judge who has reversed the decision held that the suit is in time and decreed it, and the question that arises is whether the suit is governed by Article 62 or Article 120. If it is governed by Article 62, then it is out of time. If it is governed by Article 120, then it is within time. (2) A preliminary objection is taken by Mr. Hungund th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, this is not a case where I should interfere because in my opinion the decision of the learned Judge seems to be correct in law. (2a) Now, the question is whether the moiety of the sum of ₹ 582-6-4 was received by defendant No. 1 for plaintiff's use. It is only if it was received for the plaintiff's use that the money would be payable by defendant No. 1 to the plaintiff. Now, the language used in Article 62 is the language taken from English cases. But there is one important fact that should be borne in mind that in England it was necessary for the Courts to find an implied contract in order that suits may be maintainable. A suit in personam would not lie unless there was an express or implied contract and therefore the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 because he contended that he alone was entitled to this amount. Therefore, neither in the case of the payer nor the payee was there any suggestion that the amount of ₹ 582-6-4 was being paid to defendant No. 1 not for himself, but at least in respect of a part of it for someone else. Therefore, the transaction with which we are concerned was a transaction where the payer paid a certain amount to the payee as the sum due by the payer to the payee, and in my opinion when you have a transaction like this it is impossible to contend that on a strict construction Article 62 would apply and that I should hold that the amount was received by defendant No. 1 for the use of the plaintiff. (4) The case strongly relied upon by Mr. Datar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In that case the learned Judges, Mr. Justice Walmsley and Mr. Justice Ghose, considered the case of -- 'Mahomed Waheb v. Mahomed Ameer' and they pointed out that that case presented no difficulty because there one co-mortgagee received the entire sum of money due to himself and the other co-mortgagee from the mortgagor, and they also pointed out at p. 479 that the real difficulty seems to be that, in construing the words of Article 62 of the Indian Limitation Act, the Courts in some of the cases have apparently considered that that article refers to all cases where an action for money had and received would lie at common law in England, and then the learned Judges point out that the common law form of action for money had and rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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