Ganesh Mahto vs Bhawan Mahto and Another

Fazl Ali, J.—This is an appeal by the plaintiff in a suit for contribution which was decreed by the trial Court but has been dismissed on appeal by the lower Appellate Court on the ground of limitation. The only question to be decided in this Court is whether the decision of the lower Appellate Court as to limitation is correct. It appears that one Jitan Mahto had a joint decree for rent against the plaintiff arid defendants, and in execution of that decree he obtained from the third Munsif of Chapra, to whom he had applied for the execution of the decree, an order for the attachment of a sum of Rs. 163-2-6, which had been paid into the Court of the Fourth Munsif by one Parmeshwar Mahto, a judgment-debtor of the plaintiff, to the credit of the latter. On 30th July the original order of attachment was modified by the Third Munsif as follows:

Decree-holder is allowed to withdraw Rs. 40-8-8 only out of Rs. 163-2-6 and in respect of the balance amount, the attachment is withdrawn. Inform the Court concerned accordingly. Put up on the date fixed for further orders.

Subsequently on 20th August, the same learned Munsif passed the following order:

Let the attached money be transferred to the credit of decree-holder and send the payment order to the Court concerned and put up on 2nd September 1982 for orders.

On 3rd September 1932, the payment order was made over by the Fourth Munsif to the decree-holder''s pleader. Article 99, Limitation Act, which is undoubtedly the proper Article applicable to the present suit provides that the period of limitation in a suit for contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, is three years from the date of the payment in excess of the plaintiff''s own share.

Thus the real question to be decided in this appeal is what was "the date of the payment" in the present case. The plaintiff''s contention is that the date of the payment was 3rd September 1932, when the payment order was handed over by the Fourth Munsif who held the plaintiff''s money, to the decree-holder''s pleader. On the other hand it is contended on behalf of the defendants that the date of the payment was 20th August 1932, because on that date the Third Munsif directed that the attached money be transferred to the credit of the decree-holder and the payment order sent to the Court concerned.

The learned Subordinate Judge whose judgment is under appeal has held that limitation began to run from 20th August, and as the present suit was brought more than three years after this date, it was barred by time.

In my opinion the view expressed by the learned Subordinate Judge is not correct. It is to be remembered that the attached money was in deposit in the Court of the Fourth Munsif and that before it was paid to Jitan Mahto (the decree-holder under the rent decree), a payment order had to be sent to him by the Third Munsif who had issued the order of attachment. All that happened on 20th August, was that the Third Munsif directed his office to note the transfer of the attached money to the decree, holder''s account and send the payment order to the Court of the Fourth Munsif.

There is nothing in the judgments of either of the two Courts below to show when the payment order was actually prepared and when it was actually sent to the Fourth Munsif, but both the Courts below are agreed that it was not until 3rd September, that the payment order was actually issued to the decree-holder''s pleader. It further appears that the Third Munsif did not record satisfaction of Jitan Mahto''s decree until 16th September, and presumably he did so only after he received intimation that money had been withdrawn by Jitan Mahto. In my judgment the payment to the decree-holder cannot on these facts be deemed to have been made prior to 3rd September 1932.

The learned advocate for the respondents has, in support of his contention that the payment in the present case must be deemed to have been made on 20th August, referred us to Gahar Ali Houladar Vs. Abdul Owahab Sikdar and Others, and Meghavarnam Naidu v. Mahamad Mohideen Sahib AIR (1986) Mad 782 . The facts of both these cases however are easily distinguishable from those of the present case. In Gahar Ali Houladar Vs. Abdul Owahab Sikdar and Others, the landlords of a certain taluk had obtained a decree for rent against the plaintiff and defendants who were co-sharers in that taluk and when the property was advertised for sale, the plaintiff deposited the entire decretal amount in Court, which was accepted by the Court and the landlord''s decree was recorded as satisfied. The deposit was made by the plaintiff in Court on 4th February 1920, and the money was, actually withdrawn by the decree-holders-on 14th February 1920. On these facts it was held in a suit for contribution brought by the plaintiff against the defendants that the period of limitation for the suit began to run from the date on which the money was appropriated by the Court in payment of the decree-holder''s dues and not from the date when the decree-holder withdrew the money.

In the second case the suit for contribution was based on a payment made by the plaintiffs, who owned lands in a holding of which defendants 2 to 4 were also pattadars, in order to save the holding from sale for arrears of rent due to defendant No. 1; and it was held that the period of limitation for the suit began to run from the date on which the plaintiff had deposited the amount in question for saving the property.

It is to be noted that both these cases were cases of voluntary payment, and as such, are clearly distinguishable from the present case, where the alleged payment was made under compulsion. It is contended that the test as to the date of payment is as laid down in Gahar Ali Houladar Vs. Abdul Owahab Sikdar and Others, , to find out on what date the plaintiff lost dominion over the money which he paid.

But in my opinion that is not a test which can be applied to every case, and it is certainly not the correct test so far as the present case is concerned, because here the plaintiff may well be said to have lost control over the money on the date the money was attached by the Third Munsif at the instance of the decree-holder. It will be perhaps more accurate to say that the true test is to find out when the money ceased to become the money of the plaintiff, but it is not safe to lay down any rigid formula for the purpose of determining the date of payment, as the question of payment being a question of fact must be determined with reference to the circumstances of each case.

In my opinion it is impossible to hold on the facts of the present case that time could begin to run against the plaintiff prior to 3rd September and as the present suit was brought within three years of that date, I am unable to hold that it was barred by limitation. I would therefore allow this appeal with costs, set aside the judgment and decree of the lower Appellate Court and decree the plaintiff''s claim with interest at six per cent, from 3rd September 1932 until realization.

Harries, C.J.

I agree