Venugopal and Brother and Others vs P. Gopala Chettiar

N. Venugopal, J.—The three defendants are the appellants. The facts are fairly simple. The first defendant is the son of the second

defendant and the third defendant is their employee in their cloth shop. The plaintiff, who is a tailor, was plying his profession in a portion attached

to that shop and he defaulted in the payment of rent. The first defendant filed a suit for the recovery of the rent and before judgment attached the

sewing machine belonging to the plaintiff. The sewing machine, after attachment, was handed over to two sureties, who are the second and third

defendants. It has been rightly found by the lower appellate Court that during the period when the machine was in the custody of the defendants the

vital parts of the machine, namely, the bobbin, shuttle and needle, were removed and the machine being the sole means by which the plaintiff was

earning his livelihood and it also being the tool of an artisan necessary to enable him to earn his livelihood as such, the attachment was raised on an

application made by the plaintiff upon those averments. He applied for re-delivery and an amin was sent for the purpose and it was found that the

machine had been rendered absolutely worthless by the removal of the important parts and it had also become rusty and unworkable. The plaintiff

refused to take delivery of the same and filed the suit put of which this appeal arises for return of the machine in the condition in which it was at the

time of the attachment or for damages. The first Court, whose appreciation of evidence and whose grasp of the principles applicable to the

question, I must say, is far from satisfactory, made a decree to the effect that the first defendant was not liable at all and that, so far as the second

defendant is concerned, he should return the machine in the same condition in which it was brought to Court and, if the plaintiff was not willing to

take the same in that condition, the second defendant should pay a sum of Rs. 75 as stipulated by the security bond. The plaintiff appealed and the

learned Subordinate Judge reversed the findings of the District Munsiff and held that the first defendant also was liable to return the machine in the

original condition or pay its value to the plaintiff and, since the defendants by their conduct had made it impossible for them to return the machine in

the original condition in which they took it, the decree of the lower Court was set aside and the three defendants were directed to pay the plaintiff

Rs. 200 towards the value of the machine with subsequent interest. The present appeal is against that order of the Subordinate Judge.

At the outset the learned Advocate for the appellant has forcibly argued the question of limitation. He contends that, on the facts of the case,

Article 29 of the Limitation Act becomes applicable and the suit is barred. The attachment and delivery of the machine to the sureties in this case

was on the 16th July, 1942. The suit was filed on the 2nd August, 1943. The period of limitation provided by Article 29 is one year and time from

which period begins to run is from the date of seizure. Hence, it is argued, this being a case falling within that article, is barred because the suit was

filed after the expiry of one year from the date of seizure. Article 29 deals with a suit for compensation for wrongful seizure of moveable property

under legal process. In support of his contention that the present suit falls within the ambit of that article, the learned advocate for the appellant

relies on The Pannaji Devi Chand, a Marwadi Firm and Company, consisting of the following Partners, Punnamchand and Others Vs. The Firm of

Senaji Kapur Chand, . The headnote correctly brings out the point decided in that case and is to the following effect:

Article 29 of the Limitation Act applies to all cases of attachment before judgment where specific moveable property is actually seized and the

seizure is wrongful either because the Court had. no jurisdiction or because the attachment was obtained on insufficient grounds; the article applies

whether the property attached belongs to a defendant in the suit or to a third party. The starting point of limitation is the date of actual seizure and

the time taken in getting the seizure declared illegal either, on appeal or by other means cannot be deducted.

The learned Advocate for the respondents does not dispute the correctness of the principle decided in that case. The principle governs cases

where there was an attachment, which was found to have been wrongful, because the Court had no jurisdiction or because the attachment was

obtained on insufficient grounds--cases which, in terms, fall within the description of the suits mentioned in Article 29. For a suit under that article,

there are no additional factors such as misappropriation or theft or conversion of the attached property; If such complications do not exist, as they

did not exist in The Pannaji Devi Chand, a Marwadi Firm and Company, consisting of the following Partners, Punnamchand and Others Vs. The

Firm of Senaji Kapur Chand, , then Article 29 will apply; but if they do exist we will have to look for some other article in which those additional

factors are present and are provided for and that article is Article 48. Article 48 refers to suits for specific moveable property lost or acquired by

theft, or dishonest misappropriation, or conversion, or for compensation for wrongfully taking or detaining the same. Where therefore the suit is for

compensation for wrongfully taking or detaining the property lost or acquired by theft or by dishonest misappropriation or conversion, Article 48

would be applicable and not Article 29. Even if Article 48 does not in terms apply, Article 49, which is a residuary article, would be applicable,

since that article deals with suits for specific moveable property not otherwise provided for, or for compensation for wrongfully taking or injuring or

for wrongfully detaining the same. The period of limitation under both Article 48 and Article 49 is three years and the time is to run from the time

when the person having a right to the property first learnt in whose possession it was or when the detainer''s possession became unlawful. This

view finds substantial support in a number of decisions. In Krishna Ayyar v. Sudalaimuthu Pillai (1945) M.L.J. 265 :I.L.R. (1945) Mad. 784 the

first defendant, who was the plaintiff in another suit had applied for the attachment before judgment of two brick kilns and had taken custody of the

same executing a security bond. The plaintiff in that suit objected to the attachment under Order 21, Rule 58 and on his paying the amount due to

the first defendant he was asked to deliver the kilns to the plaintiff. When the delivery was effected the plaintiff found that most of the bricks in the

kilns had been removed and he filed a suit for the recovery of the value of the bricks. It was held that the suit was neither on the security bond, nor

for compensation for wrongful seizure of moveable property under legal process (Article 29) but one for compensation for wrongfully taking or

injuring or wrongfully detaining the property and the appropriate article of the Limitation Act applicable was Article 49 which provided three years''

limitation from the date of wrongful taking and consequently the suit was not barred by limitation. To facts, which are somewhat similar to those in

the present case, the Privy Council applied Article 48 in Lewis Pugh v. Ashutosh Sen (1928) 56 M.L.J. 517 : L.R. 56 I A. 93 : ILR 8 Pat. 516 ,

where their Lordships point out that the two articles (Articles 48 and 49) are the only ones that apply to claims in respect of specific moveable

properties and that Article 48 alone refers to conversion. In an earlier case decided by this Court, Murugesa Mudali v. Jotharam Davay ILR

(1899) Mad. 478, in similar circumstances, it was held that Article 49 applied. In execution of a decree obtained by the defendants in that case in

the Court of Small Causes certain goods belonging to the plaintiff were attached and the plaintiff preferred a claim which having been disallowed,

he filed in the City Civil Court, Madras, a suit and obtained a declaration of his title to the goods; but, prior to the date of the decree, the goods

attached had been sold by the Court of Small Causes and certain third parties had become purchasers. The plaintiff sued for the recovery of the

goods or their value as compensation. Since in that case the goods were not in possession or under the control of the defendants it was found that

he was not entitled to the recovery of the goods in specie and that his only remedy was by way of damages for the wrongful taking of his goods at

the instance of the defendants. With regard to the question as to which article of the Limitation Act applied, it was held that the suit, being framed

for the recovery of specific moveable property, was governed by Article 49 and the alternative prayer for the value of the goods as compensation

must be read as ancillary to the main relief asked for with reference to Section 208 of the CPC and did not alter the character of the suit or bring it

within any other category of the schedule to the Limitation Act.

In the present case the findings are and I agree with them entirely, that the most vital parts of the machine were actually stolen while the machine

was in the possession of the defendants. A distinction is sought to be made with regard to the first defendant who was not one of the sureties and

who as such was not in possession of the machine; but the lower appellate Court has rightly held that in the circumstances of the case he must also

be made liable. It is not necessary to go into the grounds upon which that view is founded as I am clear that the learned Subordinate Judge was

right in that view expressed by him in these terms:

The first defendant cannot now escape by stating that the machine was entrusted only to defendants 2 and 3 and that he had no hand in either the

retention of the machine or the removal of its important parts. He and the second defendant along with their employee, the third defendant, should

have connived and removed the missing parts so as to deprive the plaintiff of the machine. They are bound to return the machine to the plaintiff in

the condition in which it was entrusted to hem and the evidence of the second defendant shows that they will not be able to do it because he denies

that he removed any parts from that machine. I totally disbelieve his evidence.

On a careful scrutiny of the evidence he found that defendants 2 and 3 did not offer to deliver the machine to the plaintiff in the condition in

which it was handed over to them and that they removed some important parts from the machine; and that the defendants have by their conduct

made it impossible for them to return the machine in the original condition in which they took it and consequently a direction for the return of the

machine in that condition at that stage was practically useless and would be infructuous. He therefore set aside the decree. With these conclusions

as I have already indicated, I agree. I am of the opinion that Article 48 or Article 49 would apply and not Article 29.

On the facts, I agree with the findings of the learned Subordinate Judge and find all the defendants liable to pay to the plaintiff a sum of Rs. 200

towards the value of the machine with subsequent interest as decreed by the learned Subordinate Judge.

I may say before closing that the question of limitation was not specifically raised at any earlier stage by the appellant; but, since there is no

question of any additional facts having to be brought on record and as it was purely a question of law, I allowed the point to be raised and argued

before me.

In the result the appeal is dismissed with costs.

Leave to appeal is refused.