Jayanthi Rudrayya vs Jayanthi Subbarayappa and Others

King, J.—The appellant in this appeal obtained a decree in 1921 and in execution of the decree brought certain property to sale. The

property was purchased by the predecessor-in-title of the present plaintiffs and the purchase money was duly paid over to the decree-holder on

12th March 1925. Before the sale of the property had taken place, there had been a claim petition put in by a mortgagee and that petition had

been dismissed. The mortgagee subsequently filed a suit to set aside the order on the claim petition and to that suit the auction purchaser was made

a party. The suit was decreed on 4th December 1926 on the ground that the judgment-debtor had no interest in the property and this finding is of

course res judicata as against the auction purchaser and his representatives. On 12th June 1928 the legal representatives of the auction purchaser

filed the suit from which the present appeal arises to recover from the decree-holder the money which they had paid for the property purchased. It

was contended on behalf of the decree-holder that this suit was barred by limitation but both the Courts below have held that the suit was within

time and they decreed the plaintiffs'' claim. This is now a second appeal by the decree-holder against that method of disposing of the suit.

The only question which arises is one of limitation. It is argued on behalf of the appellant that this is a suit which falls under Article 62, Limitation

Act. It is argued on the other hand for the respondents that the proper article applicable to the suit is Article 96. There is one authority directly in

favour of the appellant with regard to the application of Article 62 and that is a decision of Cornish J. sitting singly reported in Sivaramaraju v.

Secretary of State AIR 1935 Mad. 354. The facts in that case are undoubtedly similar to the facts here; but that was a case in which no argument

was put forward with regard to the possibility of applying Article 96. And indeed on an examination of the facts and dates it will appear that no

such arguments could possibly have been successfully put forward on behalf of the party concerned. It is clear that the plaintiff in that case knew on

12th December 1919 that he had paid the money under a mistake, if mistake there was, and that he did not file his suit until July 1925. There was

therefore no point in his arguing that Article 96 rather than Article 62 applied to the case as under either of these articles his suit would be

undoubtedly barred. Although therefore Cornish J. does say that Article 62 applies to the facts before him, he has said so without considering the

possible alternative that the suit with which he was dealing might also fall under Article 96. And, as has been pointed out in Ramiah & Co. v.

Sadasiva Mudaliar & Bros AIR 1925 Mad. 1255 if the facts of a particular case fall within both Article 62 and Article 96, Article 96 must be

applied as it is the more specific and the less general of the two articles. Learned Counsel for the appellant has also relied upon other rulings of this

Court in Baijnath Lala v. Ramadoss AIR 1915 Mad. 405, Municikpal Council, dindigul v. Bombay Co. Ltd. AIR (1929) Mad. 409 and a

decision of mine sitting singly in Shanmugham Chettiar v.Official Receiver of West Tanjore AIR 1938 Mad. 532. It will be seen upon an analysis of

the facts of these cases that in Baijnath Lala v. Ramadoss AIR 1915 Mad. 405 and Sivaramaraju v. Secretary of State AIR 1935 Mad. 354 it

would have been impossible for the plaintiff to have put forward any case based upon a mistake made by himself. In both these cases the plaintiff

was throughout asserting the same title under the same knowledge of his rights. In Shanmugham Chettiar v.Official Receiver of West Tanjore AIR

1938 Mad. 532 it might plausibly be asserted that the claim of the Official Receiver in that case could be based upon a mistake under which the

Court had been labouring in making certain payments. But as has been held in Panna Lal Ghose Vs. The Adjai Coal Co. and Others, , Article 96

cannot be applied to a case in which the plaintiff himself has not been the victim of any mistake. No argument was adduced before me in

Shanmugham Chettiar v. Official Receiver of West Tanjore AIR 1938 Mad. 532, with regard to the possible applicability of Article 96. It was a

mere question of choice between Article 62 and Article 120 and of course it may also be pointed out that the facts in that case were, in no sense,

identical with the facts before me in the present case. There is therefore no clear authority that Article 96 does not apply to the facts of the present

case and any authority to the effect that Article 62 may apply to these or similar facts cannot be binding upon me in the absence of any

consideration whether Article 96 also might apply.

Learned Counsel for the respondents relies mainly upon the decision of the Full Bench of this High Court reported in Macha Koundan v.

Kottara Koundan AIR 1936 Mad. 50. It is true that this decision does not deal directly with any question of limitation but it does deal with a claim

made upon precisely similar facts to those now before me. In that case, as here, the auction purchaser was claiming refund of money paid to the

decree-holder and he puts forward as the basis of his claim a discovery which he has made that the property which he purchased was one in which

the judgment-debtor had no interest. The question before the Full Bench was whether any such suit lay at all and in order to decide this question

the {earned Judges had to analyse the nature of the plaintiffs'' claim. What they say is this (on p. 208):

The facts are that a decree-holder brings a certain property to sale bona fide believing it to belong to his judgment-debtor. The Court also under

the same belief orders the sale of the property. The auction purchaser also under the same bona fide belief purchases it. Afterwards it turns out that

the property does not belong to the judgment-debtor at all. Thus the auction purchaser purchases nothing, though he paid consideration for it under

a mistake. The decree-holder gets a certain amount without really having brought any of the properties of the judgment-debtor to sale, i.e., under a

similar mistake. Under the circumstances, it is unconscionable that the decree-holder should retain the benefit of the money so obtained and the

auction purchaser should lose it, and one would think that the auction purchaser would have a right of action for money had and received under the

general law und not under any code of procedure.

It seems to me quite clear that in this analysis of the claim of the plaintiff the learned Judges were stressing the fact that the plaintiff, the defendant

and the Court were all alike acting upon a mistaken belief as to the true state of affairs. It follows (therefore that in order to found a claim to

recover the money the plaintiff must assert, ''whether he does so explicitly or not, that these facts exist, i.e., that he paid the; money under a mistake

or that the Court paid over his money to the defendant under a mistake. The idea of a mistake in the minds of all persons concerned is thus clearly

emphasised. Now, if the learned Judges had been considering whether the suit before them was or was not barred by limitation it seems to me they

would have been compelled by this very reasoning to hold that Article 96 was the article to which recourse would have to be made. Article 96 is

an article relating to a suit for relief on the round of mistake and here, as I have already mentioned, the fundamental basis of the claim made by the

plaintiff is the existence of such a mistake. If Article 96 applies, the time begins to run only when the mistake becomes known to the plaintiff. In the

present case it cannot be successfully argued'' that the plaintiff became aware of his mistake until the decree in the suit by the claimant was passed

in 1926. Till that time the plaintiff in opposition to the claim was asserting that the judgment-debtor had an interest in the land and therefore that the

sale to the plaintiff is valid and it could not have been until the final adjudication of this question between him and the claimant that the plaintiff could

be said in any real sense of the word to have become aware of the mistake under which he had purchased the property. The suit is admittedly

brougb.fr within three years of the date of the decree in the claimant''s suit and must therefore be held to have been brought in time. In the result

therefore this appeal must fail and is dismissed with costs of respondents 1 and 2. Leave to appeal is refused.