Mohapatra, J.:— The unsuccessful plaintiff in both the Courts below has brought this second appeal against the judgment and decree dated 15-3-1950, of Sri G.R Rao, Addl. Subordinate Judge of Balasore, arising out of a suit brought by the plaintiff for recovery of compensation of Rs. 3620/12/- in the following circumstances:

2. Defendant No. 1 is the Province of Orissa and defendants 2 to 6 are the members of the Food Distribution Committee. On 11-7-1943, the District Magistrate of Balasore requisitioned, under R. 75A of the Defence of India Rules, 15 bags of rice and the entire quantity of paddy found in the four granaries belonging to the appellant. Defendants 2 to 6 were directed by the District Magistrate to dispose of the paddy at Rs. 8/- per maund and pay the sale-proceeds to the appellant. The paddy was actually seized on 11-7-1943 and kept under lock and key. The appellant having executed a zimanama the stock was kept in his custody. 3rd and 4th of October, 1943, were the dates fixed for sale of the stock seized. The price of the paddy on the date of seizure after requisition was Rs. 8/- per maund. The sale could not be in fact held on 3rd and 4th of October, 1943. The plaintiff had put in an application on 16-9-1943 that the entire stock seized may not be sold and the plaintiff would be allowed to retain a portion of the seized paddy for the consumption of his tenants and debtors.

3. The plaintiff had further put in a petition on 30-9-1943 (Ext. 8) that the gazette rate of paddy on 3rd and 4th of October, 1943 being Rs. 9/8/- per maund the stock should not be sold at Rs. 8/- as directed by the District Magistrate. The paddy was actually sold on 3rd and 4th October, 1944, and fetched value at the rate of Rs. 5/6/- per maund. According to the plaintiff, the paddy seized was 1196 maunds. It is to be mentioned here that in fact the requisition order had expired on 15-11-1943.

4. The plaintiff fixes the compensation on the basis of the difference of the price of the paddy on the date of actual seizure on 11-7-1943, that is at Rs. 8/- per maund, and the price actually fetched by the sale on 3rd and 4th October 1944, that is, at Rs. 5/6/- per maund the difference being Rs. 2/10/- per maund. He has assessed the compensation for paddy at Rs. 3140/12/-. Regarding the rice he claims the entire value of the 30 mds. of rice seized on the ground that on account of the seizure the rice deteriorated and became unfit for human consumption.

5. The lower appellate Court has confirmed the decree passed by the trial Court dismissing the suit of the plaintiff on the ground that the present suit is not maintainable under the provisions of the Defence of India Act, 1939, the plaintiff's remedy being confined only to the provisions of the said Act as contained in Rule 75A. He has also dismissed the suit on the ground of limitation. He has further found that it was on account of the fault of the plaintiff himself that the stock seized could not be sold on the dates fixed by the District Magistrate, that is, on 3rd and 4th of October, 1943.

6. It has been found that on the expiry of the order of requisition the plaintiff was absolutely free to sell the paddy and the plaintiff's claim for compensation on the difference of price on the date of requisition and on the dates of actual sale, that is, on 3rd and 4th October, 1944, must be negatived.

7. It is to be observed at the outset that the appeal against respondents 2 to 6, that is, the members of the Food Distribution Committee, was not pressed before us and Mr. Sinha, appearing on behalf of the appellant, confined his appeal against respondent No. 1 (Province of Orissa). Section 14 of the Defence of India Act, 1939, recognises the ordinary remedies available to the parties under the Civil and Criminal Courts in the country but restricts their jurisdiction only to the extent as expressly provided by the provisions of the Act. The learned Advocate-General, appearing on behalf of the State, strongly relies upon Sub-s. (2) of S. 17 of the Act running as follows:

“Save as otherwise expressly provided under this Act no suit or other legal proceeding shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rule or rules made thereunder.”

8. The present case is manifestly taken out of the mischief of this provision on account of the clear feature that the present suit is not one for damages on account of any wrongful act of the District Magistrate of Balasore. On a fair reading of the plaint it appears to be clear that his is a simple suit for compensation of the paddy seized. Undoubtedly he is entitled to the compensation for the requisition and seizure of the paddy belonging to him under the very provisions of the Act. The rule that has been so much relied upon by the lower appellate Court, that is 75A, contains the mandatory provision that the Central Government or the Provincial Government if requisitions any moveable property, shall pay compensation to the owner thereof.

9. Indeed the rule further provides that the compensation has got to be determined by the Government itself. But in the present case if the Government does not determine the compensation in spite of the application of the owner of the property and does not pay any amount towards the compensation, in our opinion, the owner is entitled to seek his remedy in the ordinary Courts of law. On an examination of the records of the case we find that in fact on 23-8-1343, the present plaintiff had made an application praying for payment of compensation of the paddy seized on 11-7-1943 (Ext. P).

10. The plaintiff in that petition requested for an order for payment of Rs. 4820/12/- as the statutory compensation for the paddy and rice requisitioned by the Government on the allegation that the paddy requisitioned was 1193 mds. 18 seers. He asserts in the petition that as a matter of law the Government is bound to pay adequate compensation for the articles seized after requisition. It is unfortunate that the Government did not take any steps whatsoever on this petition. We would quote here the procedure laid down for the purpose of fixation of compensation in sub-r. (5) of R. 75A, Defence of India Rules:

“(5) The Central Government or the Provincial Government may, with a view to requisitioning any property under sub-r. (1) or determining the compensation payable under sub-r. (4) by order:

(a) require any person to furnish to such authority as may be specified in the order such information in his possession relating to the property as may be so specified:

(b) direct that the owner, occupier or person in possession of the property shall not without the permission of Government dispose of it or where the property is a building structurally after it till the expiry of such period as may be specified in the order.”

11. In the present case, the Government having completely failed to discharge the duty imposed upon it by statute, in not determining the amount of compensation and not paying any amount to the owner of the property requisition-led, it can never be suggested for a moment that the owner would be absolutely without his remedies under the ordinary laws of the country. In our view therefore it is clear that in such circumstances the ordinary remedy is available to the present plaintiff and the suit for compensation is maintainable.

12. The lower appellate Court has gone wrong in finding that the plaintiff is disentitled to pursue his remedy in this suit for compensation on account of the feature that is responsible for the paddy not being sold on the date fixed, that is, 3rd and 4th October 1943. The plaintiff indeed had, as mentioned above, applied to the Sub-divisional Magistrate as per Ext. B on 18-9-1943, to allow him to give some paddy under seizure for the consumption of the plaintiff's tenants and debtors.

13. Further he had on 30-9-1943, raised an objection for the sale of paddy at the rate of Rs. 8/- per maund as directed by the District Magistrate when the actual value of the paddy was according to the gazette rate, on 3rd and 4th October, 1943, Rs. 9-8-/- per maund. In our view, the above steps taken by the plaintiff were perfectly legitimate and within his rights to take. The lower appellate Court is completely wrong in law in finding that the plaintiff is disentitled to the compensation prayed for in the plaint on account of putting these obstructions in the paddy being sold on the dates fixed. This itself can never be found to be an obstruction.

14. A further objection also has been taken on behalf of the Province of Orissa that the sale could not be held on 3rd and 4th October, 1943, on account of the absence of the plaintiff. The objection has equally no force inasmuch as on requisition, the property had vested in the Government and in spite of the absence of the plaintiff on the dates fixed, it was perfectly within the powers of the Officers, ordered to sell, to carry out the order and sell the paddy under requisition.

15. We are, however, in agreement with the view expressed by the lower appellate Court that on the expiry of the force of the order of requisition on 15-11-1943, the plaintiff was at liberty to sell his own paddy at any time without waiting for the Government. The plaintiff, therefore, will not be entitled to raise his claim on the difference of price actually fetched after sale on 3rd and 4th October, 1944, from the price of the paddy on the date of requisition.

16. But nevertheless he is entitled to be paid compensation on the difference between the price at the time of requisition, that is, 11-7-1943, and the price on 16-11-1943 that is, the date of expiry of the order of requisition. The lower appellate Court unfortunately has committed an error of record in finding that the value on 15-11-1943, was Rs. 6/- per maund. The price of paddy notified in the Orissa Gazette prevailing on 16-11-1943 is however found to be Rs. 5/6/- per maund and the position is not controverted by the learned Advocate-General. It is to be found therefore that the plaintiff is entitled to be paid compensation on the basis of the calculation of the difference of Rs. 2/10/- per maund.

17. The Courts below have concurrently found that in fact the paddy actually seized was 820 maunds and not 1196 as alleged by the plaintiff. There is also no material that out of this 820 maunds actually seized any amount was in fact released during this period. We therefore find that the plaintiff is entitled to the difference in value of 820 maunds of paddy.

18. The plaintiff in his plaint has further claimed a sum of Rs. 480 as the price of 30 maunds of rice at the rate of Rs. 16/- per maund which was seized along with the paddy on 11-7-1943, on the allegation that the rice deteriorated and became unfit for human consumption. The Courts below have disallowed the claim on the finding that there is no evidence that the rice deteriorated and became unfit for human consumption. Mr. Sinha also did not challenge the finding by showing any material on the question of the rice having deteriorated and become unfit for human consumption.

19. But the rice having been seized on 11-7-1943, on the order of requisition which lost its force on 15-11-1943, the plaintiff could not sell the rice during this period and on the basis of the principle that we have followed in allowing the claim of the plaintiff in respect of the paddy he is entitled to the compensation on the difference of price on the date of seizure and on the date when the requisition order expired. On the date of seizure the price of the rice was Rs. 16 per maund and on 16-11-1943, it was Rs. 10/12/-. The plaintiff is therefore entitled to a decree on this account at the rate of Rs. 5/4 per maund, that is to say, Rs. 157/8/-.

20. On the question of limitation, the Courts below have found that the cause of action for the suit arose from the date of requisition, that is from 11-7-1943 and as such, the suit having been filed on 15-11-1946, the suit is barred by limitation. The view taken by the Courts below is manifestly erroneous in law on the simple consideration that the plaintiff could not bring the present suit immediately on the requisition of the paddy and rice in question on 11-7-1943. As we have discussed above, under the provisions of the Defence of India Rules, such a suit would not be maintainable.

21. The Government under R. 75-A is bound to compensate the owner of the property requisitioned. The procedure is laid down in sub-r. (5) as we have quoted above. It was the primary duty of the Government to determine the compensation. It is to be mentioned here that there is no time limit fixed within the provisions of the Defence of India Rules as to when the Government is to determine the compensation and when it is to pay. In the peculiar circumstances of the present case, the Government having failed to do its statutory duty to determine and pay the compensation, the plaintiff filed an application on 23-8-1946.

22. Thereafter he waited for a reasonable time and even then when the Government still did not determine and pay the compensation as provided under the Defence of India Rules, the plaintiff as we have found, is entitled to seek his remedies in the Civil Court. The learned Advocate-General relies upon Article 2, Limitation Act, which runs as follows:

“2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in all the Provinces of India. 90 days. When the act or omission takes place.”

23. He cannot place reliance on the clause “for doing an act, when the act takes place”; because on the requisition of the property in question the plaintiff could not bring a suit. Neither can he rely upon the other clause

“for omitting to do an act alleged to be in pursuance of any enactment in force, when the omission takes place”.

24. The case is taken out of the provisions of this Article as it cannot be ascertained as to when the omission had taken place. It is important to note that there is no provision in the Defence of India Rules as to when and within what time the owner of the property is to make an application or within which period the Government is, to determine the compensation. In view of the peculiar feature of the cases of this nature, the case is not covered by any of the specific Articles of the Limitation Act excepting the residuary Article 120. The suit, therefore, is not barred by limitation.

25. In conclusion, therefore, the appeal is allowed, the judgments and decrees of the Courts below are set aside and the plaintiff is entitled to recover a sum of Rs. 2310/- (Rs. 2152/8 as the value of 820 maunds of paddy at the rate of Rs. 2/10 per maund plus Rs. 157/8/- as the value of 30 maunds of rice at the rate of Rupees 5/4/- per maund) from respondent No. 1. The appeal stands dismissed against the other respondents. The plaintiff is entitled to proportionate costs throughout against respondent No. 1. As the plaintiff has substantially succeeded in the case and had a rightful cause to pursue, in our opinion, it would be proper to order regarding the other respondents, that each party is to bear his own costs throughout. The plaintiff is entitled to pendente lite interest on the aforesaid sum of Rs. 2310/- from the date of the institution of the suit till the date of the decree at the rate of six (6) per cent per annum and the plaintiff is also entitled to future interest on the decretal amount at the same rate from the date of the decree till the satisfaction of the decree.

Panigrahi, C.J:— I agree.

V.R.B

26. Order accordingly.