1. The plaintiffs are the appellants. They have appealed against the judgment of the District Judge of Purnea reversing a decision of the Munsif of Kishanganj in a suit filed by the plaintiffs-appellants for realisation of Rs. 594-6-0 from defendant No. 1, the Bihar State Co-operative Bank, Ltd. The plaintiffs' case was that plaintiff No. 1 was the proprieor of the firm plaintiff No. 2. The plaintiffs had ordered 900 bags of salt to be supplied by defendant No. 1, the agreed rate between the parties being Rs. 6-8-6 per bag of 2 maunds. This agreement was arrived at some time in April or May, 1950. Defendant No. 1 supplied the commodity in three consignments and for realisation of the price, railway receipts were sent to the plaintiffs through the Central Bank of India, Kishanganj Branch. The three consignments had been rent under invoice Nos. 4980 dated 13-11-1950, 5345, dated 13-12-1950, and 5390, dated 19-12-1950.

2. The railway receipts were dated 10-11-1950, 11-12-1950 and 16-12-1950. It may also be mentioned that the plaintiffs had paid Rs. 1,200/- in advance. The plaintiffs contended that when the railway receipts were made over to them by the Central Bank of India it was found by the plaintiffs that defendant No. 1 had charged Rs. 7-2-0 per bag instead of Rs. 6-8-6 as agreed between the parties. There was a large amount of correspondence between the parties on this point. Ultimately the defendant denied his liability for any excess charge. The plaintiffs alleged, also, that on 27-8-1954, the defendant had agreed to pay the amount under claim.

3. In the written statement which was filed by defendant No. 1, the contesting party, it was alleged that the price agreed upon was never Rs. 6-8-6, but it was Rs. 6-13-6 per bag plus annas 0-4-0 per bag as the commission of the defendant according to the order of defendant No. 2, the State Government, and, therefore, the price charged by defendant No. 1 at Rs. 7-2-0 per bag was correct. Defendant No. 1 also denied the allegation made by the plaintiffs that it had agreed on 27-8-1954, to pay the amount under claim.

4. It was also contended by defendant No. 1; that the claim of the plaintiffs was barred by limitation because Article 62 of the Limitation Act applied and the suit having been brought more than three years after the money was received by the defendant, the plaintiffs' claim could not be entertained.

5. Defendant No. 2, the State of Bihar, filed another written statement contending that it had no concern either with defendant No. 1 or with the transaction in question.

6. The learned Munsif found that the agreement between the parties was that the salt was to be supplied by defendant No. 1 to the plaintiffs at the rate of Rs. 6-8-6 and not Rs. 7-2-0 per bag as alleged by the defendant, and, therefore, the plaintiffs were entitled to realise the excess amount paid by them to the defendant No. 1. On the point of limitation the learned Munsif was of the view that it was Article 120 of the Indian Limitation Act and not Article 62 nor Article 96 of the Act which applied, and, therefore, the suit was not barred by limitation. As regards defendant No. 2 the learned Munsif held that it had no concern with the transaction in question and, therefore, that defendant was not liable for any amount. Accordingly, the learned Munsif passed a decree in favour of the plaintiffs against the defendant No. 1.

7. It may be mentioned that the claim laid by the plaintiffs was as follows: Rs. 534-6-0 representing the excess amount paid, Rs. 10/- as cost of notice and Rs. 50/- as cost of railway journey etc. undertaken by the plaintiffs who came over to Patna to discuss the matter with defendant No. 1. It appears that the learned Munsif decreed the suit in full. As against defendant No. 2 it was dismissed.

8. The learned District Judge agreed with the Munsif on the question of this rate contracted between the parties, that is to say. Rs. 6-8-6 pies per bag and held that the plaintiffs were entitled to claim the excess amount paid beyond this rate by them to defendant No. 1. But he disagreed with the learned Munsif on the point of limitation, holding that it was Article 62 of the Limitation Act which applied, and, therefore, the plaintiffs' suit should have been brought within three years from the date or payment. But as this had not been done, the plaintiffs' suit was barred. Accordingly, he set aside the judgment and decree passed by the learned Munsif and dismissed the suit.

9. On the point of the items of the claim, the learned District Judge disallowed the claim for Rs. 50/- and held that the plaintiffs were entitled to claim the rest.

10. In this appeal before me it is urged on behalf of the plaintiffs that the Court of appeal below was in error in holding that the claim of the plaintiffs were barred by limitation under Article 62 of the Indian Limitation Act. It is contended that it is Article 120 of the Act which applies, and, therefore, the claim of the plaintiffs was not barred by time. The learned counsel has relied upon the cases of Tofa Lal Das v. Syed Moinuddin Mirza*, AIR 1925 Pat 765; Mahomed Ibrahim v. Mahomed Ismail, AIR 1921 Lah 196; Peria Nagamam Sri Lakshmi Vilasa Draviya Sagaya Nidhi Ltd. v. Varalakshmi Aminal, AIR 1942 Mad 386; Gorakpur Electric Supply Co. Ltd. v. R.E Nariman and Co., AIR 1948 All 75; Anantram Bhattacharjee v. Hem Chandra Kar, ILR 50 Cal 475 : (AIR 1923 Cal 379); and Lingangoudi Marigouda v. Lingangouda Fakirgouda, AIR 1933 Bom 79.

11. In reply the learned counsel for the respondent has urged that the view taken by the Court of Appeal below was correct, and in support of his contention he has also cited a number of rulings: Harihar Missir v. Syed. Mohamed, 1 Pat LJ 374 : (AIR 1916 Pat 54); Ram Narain v. Brij Banke Lal, ILR 39 All 822 at p. 332 : (AIR 1917 All 276 at p. 279); ILR 4 Pat 448 : (AIR 1925 Pat 765); Roman Catholic Mission at Rawalpindi v. Sunder Singh, AIR 1914 Lah 29; Sivaramaraju v. Secy. of State, AIR 1935 Mad 354; Meghji Hirjee and Co. v. Bengal Nagpur Rly. Co. Ltd., AIR 1939 Nag 141; and Indian Sugars and Refineries Ltd. v. Municipal Council, Hospet, AIR 1943 Mad 191.

12. The learned counsel for the respondents has also raised two points here. In the first place, he contended that the original contract between the parties, according to which the defendant was to supply salt to the plaintiffs at the rate of Rs. 6-8-0 per bag became unenforceable when in October, 1950, the State of Bihar in the Supply Department issued another letter fixing a different rate for the sale of salt. The result of this order of the Government was that the defendant could not charge any price for the salt other than what was mentioned in that letter, and, therefore, the original contract got frustrated and the plaintiffs could not lay any claim on the ground of having made payment in excess of the rate originally contracted between the parties.

13. His second argument was that when the plaintiffs took delivery of the salt after paying the increased price as demanded by the defendant in the invoices and railway receipts sent to them through the Central Bank, Kishanganj Branch, and when thereafter the plaintiffs sold the salt in the market and made profits out of it, it must be taken that they had acquiesced in this subsequent increased payment and could not turn round and say that they had paid in excess, and, therefore, that amount should be refunded to them.

14. I do not find any substance in these contentions of the learned counsel for the respondent. No question of frustration of contract can arise in this case because the Government in its letter fixing a different price in October, 1950, clearly mentioned that this order would have no retrospective effect. As pointed out by the Court below there was nothing to show that in the terms settled between the parties when the contract between them for supply of salt had been arrived at, there was anything to indicate that the rate was to depend upon the changes made in it from time to time by any Government order. There is also no material pointed out to me from which it can be inferred that the order passed by the Government altering the rate at any subsequent period had automatically the effect of affecting any contract arrived at before that order was promulgated or issued irrespective of the fact whether the Government made that order retrospective or not. It may also be pointed out that there was no such argument or point taken in the Courts below. I, therefore, do not find any force in this contention.

15. The second argument of the learned counsel for the respondent is also not maintainable. I have not been able to find out any such contention raised either in the pleadings or in the evidence or even in the course of the argument in the Courts below. I, therefore do not think it is open to the learned counsel for the respondent to raise this point for the first time in this Court, when the matter required some facts to be investigated. For instance, if this plea had been taken specifically by the defendant-respondent, the plaintiffs might have led evidence to show that they had taken delivery of the salt under protest. I therefore, overrule this contention of the learned counsel for the respondent also.

16. The real point of controversy in this case is as to which of the Articles of the Limitation Act, Article 62 and Article 120, will be applicable to the case. The trial Court has held that it was not Article 62, but Article 120 of the Limitation Act which applied to this case. This did not find favour with the learned Judge in appeal who was of the view that it was Article 62 which was applicable. In the appeal before me the learned counsel for the appellants contended that the trial Court was right in holding that it was Article 120 of the Limitation Act which was applicable and not Article 62. Having regard to the facts found in this case, it seems to me that this contention of the learned counsel for the appellants is correct.

17. The facts as found are that the contract between the parties was that the defendant No. 1 would supply salt to the plaintiffs at the rate of Rs. 6-8-6 per bag of 2 maunas, that when the salt was actually sent to the plaintiffs by defendant No. 1 they charged a higher rate and realised that amount by sending the railway receipts through the Central Bank of India, Kishanganj Branch. The plaintiffs-appellants had already deposited Rs. 1,200/- as advance with defendant No. 1. The plaintiffs took delivery of the salt without any protest at that time but later raised objection to the excess charged demanding refund of the amount from the defendant. Having regard to these facts I do not think Article 62 of the Indian Limitation Act can be legitimately applied to this case. That Article runs as follows:

“52. For money payable to the plaintiff for money received by the defendant, for the plaintiff's use. Three years. When the by the defendant money is received.”

18. The fundamental principle of this Article has been taken from the doctrine of English Law underlying actions for “money had and received by the defendant for the plaintiff's use”—There had been some difference of opinion as to the extent this doctrine should be imported in Indian Law. As early as the case of Goga Ram v. Kartick Chunder Singh, 9 Suth WR 514 (FB), Sir Barnes Peacock, C.J of the Calcutta High Court observed:

“Nothing was more likely to mislead or to confuse than converting a suit brought in the Mofussil Court to the forms adopted according to the English procedure.”

19. But in a case of more recent date in Bimari Chandra Dutta v. Promotha Nath Ghose, ILR 49 Cal 886 : (AIR 1922 Cal 157), Sir Lawrence Jenkins' observation was that the Article most nearly approached the formula of “money had and received, by the defendant for the plaintiff's use, if read as a description and apart from the technical qualifications imported in English Law and Procedure”.

20. In the case of Nundo Lall Bose v. Meer Aboo Mahomed, ILR 5 Cal 597, the Judges construed the language of the Article literally. But in Ramkishan v. Bhawani Das, ILR 1 All 333 (FB) the Judges preferred the stricter interpretation according to which the Article was not applicable to cases where the defendant consciously had received the money for his own use and not as belonging to the plaintiff.

21. It is true that in the case of Hanuman Kamat v. Hanuman Mandur, ILR 19 Cal 123 (PC), the Pricy Council applied the principle of this Article to a case in which the sale of a property was found to have been void ab initio. It was held that the money received by the vendor of the property as its price was “money had and received” to the account of the vendee within the meaning of Article 62, because the price paid by the vendee, though actually received by the vendor as money payable to him was, in such a case, deemed to have been received for the use of the vendee from the moment of its payment.

22. But it is noticeable, however, that in this case possession had remained with the vendor. If possession had changed hands and had gone over to the vendee, Article 62 would not have applied Ganappa Putta Hegde… v. Hammad Saiba…., ILR 49 Bom 596 : (AIR 1925 Bom 440). The Privy Council itself has held in the above case that Article 62 would not apply to a voidable sale. In another case, Gurdas v. Ram Narain, ILR 10 Cal 860 (PC), the Privy Council pointed out that if the money, when received, was not received for the plaintiff's use, a mere equitable claim to follow the money in the hands of the defendant, was not governed by this Article.

23. In the case of Hukumchand v. Prithi Chand Lal Choudhary, 23 Cal WN 721 : (AIR 1918 PC 151), there are observations which indicates that Article 62 is intended to apply to cases which according to the law of England are suits for “money had and received.”

24. In ILR 50 Cal 475 : (AIR 1923 Cal 379), it was observed as follows:

“The real difficulty seems to be that, in construing the words of Article 62 of the Limitation Act, the Courts in some of the cases have apparently considered that Article refers to all cases where an action for money had and received would lie at Common Law in England. In my opinion, the plain meaning of the words of Article 62 should be given effect to without having recourse to any technical rules of English law regarding forms of action.”

25. This is one of the cases cited by the learned counsel for the appellants before me in which the earlier Calcutta case, Mahomed Wahib v. Mahomed Ameer, ILR 32 Cal 527, relied upon by the respondent has been explained. This later Calcutta case has been followed in a Bombay case in AIR 1953 Bom 79, in which it has been observed that this Article 62 should be strictly construed because a liberal construction would result in more plaintiffs losing in a large number of cases on the ground of limitation because if Article 62 is strictly construed, then the suit would fall under Article 120 which gives to the plaintiff a longer period of limitation.

26. There are several other articles of the Indian Limitation Act, for instance, Articles 87, 96 and 97, which also deal with the right of the plaintiff to realise money from the defendant which the latter was not entitled to retain and which was in the possession of the latter as money belonging to the plaintiff. In England, as far as I have been able to find out, the plaintiff is allowed relief on the doctrine of “money had and received” when his money is wrongfully withheld, the basis of the relief being that it is contra aquum at bonum that the defendant should retain the money against the plaintiff. It can be easily imagined that there may be many cases in which A may be required to repay money to B which has come into his hand. The case of Moses v. Macferlan, (1760) 2 Burr 1005 at p. 1012 still holds the field as the leading case on the point. In this case, Lord Mansfield said:

“This kind of equitable action to recover back-money which ought not in justice to be kept is very beneficial, and therefore, much encouraged. It lies only for money paid by mistake, upon a consideration which happens to fail, or for money got through imposition (express or implied), or extortion or oppression or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances.”

27. This remedy is bottomed in the principle of ‘unjust enrichment’ but it does not follow that the Courts will interfere, and order repayment in all cases in which money, held by one person, ought from ethical point of view, to be refunded by him to another. In Sinclair v. Brougham, 1914 AC 398, two members of the house of Lords rejected the dictum of Lord Mansfield, and sought to rest the liability upon the legal fiction of contract (see also Halsbury's Laws of England Vol. 7 p. 474). This theory is, however, open to serious objection on the score of the impossibility of the existence of such liability where a contract between the parties, had it existed, would have been invalid. And it is believed, the present tendency of judicial opinion is to revert to the principle laid down by Lord Mansfield. At any rate, the law relating to this subject is not a closed chapter. In Royal Bank of Canada v. R., 1913 AC 283 at p. 296, Viscount Haldane has laid down the law generally speaking as follows:

“It is a well-established principle of the English common law that when money has been received by one person which in justice and equity belongs to another, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover as for money had and received to his use.”

28. This principle has been adapted in this country also (see for instance, Municipal Councils, Dindigul v. Bombay Com. Ltd., ILR 52 Mad 207 : (AIR 1929 Mad 409); ILR 32 Cal 527; Bhagwan Dass v. Karam Hussain, ILR 33 All 708 (FB); and Bhagwati Saran Singh…Defendant v. Rai Kishunji…Plaintiff ., ILR 15 Pat 433 : (AIR 1936 Pat 370), (though not a case under Limitation Act).)

29. Lord Haldane does not however indicate what those circumstances are which render the money received by the defendant as money had and received to plaintiff's use. Obviously, those circumstances would be as indicated by Lord Mansfield (see quotation supra). And, indeed this broad principle has taken the following forms in its application—

(i) Money paid under a mistake of fact or law. In India, the Limitation Act deals with it separately (see Article 96). Article 62 does not come in.

(ii) Money paid, the consideration for which has totally failed: A claim coming under this heading is covered by Article 97, Limitation Act. Article 62 does not apply except where the transaction is void ab initio.

(iii) Benefit obtained by tort: If a defendant has obtained benefit from the plaintiff by tort (for example conversion, trespass, or dacoit) the latter may, in England, claim a liquidated sum as money had and received (see Neate v. Harding, (1851) 6 Exch. 349). I think this is the law in India also and such a claim has been held to be covered by Article 62, Limitation Act (see for instance, Gaffar Khan v. Syed Noor, AIR 1941 Mad 391 and Ragliumoni v. Niimoni, ILR 2 Cal 393.)

(iv) Money paid under an unlawful agreement, as a general rule is not recoverable: (in pari delicto potior est conditio possidentis) but in certain circumstances it may be recovered for instance where the unlawful act is still incomplete allowing a locus paenitentiae to other party to the agreement or where one of the parties is in minon dclicto i.e the less guilty of the two. Such a person is allowed in certain circumstances to recover the money paid or goods delivered for instance if he has been coerced into unlawfulness (see Smith v. Cuff, (1817) 6 M. and S. 160) or where he is of a class which the statute rendering the agreement unlawful is designed to protect. A case of this nature, I conceive, shall be covered by Article 62.

(v) Money obtained by extortion and under protest: Lord Reading observed in Maskell v. Horner, (1915) 3 KB 106 at p. 118,

“If a person pays money which he is not bound to pay, under the pressure of urgent and pressing necessity, or of seizure actual or threatened, of his goods, lie can recover it as money had and received.”

Instances may be easily imagined i.e payment under protest of market tolls not legally due, or of an overcharge as the only means of getting a carrier carry or deliver the goods. It is important to remember that there should be a protest by the plaintiff and the payment should be made under it.

(vi) Money received by the defendant from a third person directly or impliedly for and on behalf of the plaintiff: This will be the clearest case for the application of Article 62.

30. The Legislature in India has embodied these principles in different articles of the Indian Limitation Act to suit the condition of this country. Article 62 in my view should be confined in its application to increasingly narrow limits. Its scope should not be extended. There must be something in the transaction between the parties, their mutual dealings and relations and the surrounding circumstances, ejusdem generis with the categories mentioned already, so as to enable the Court to lay hold its hands on in a particular case as showing; that the defendant at the time he had received the money had or must be deemed to have received it for plaintiff's use and not for his own use.

31. I do not find any such tiling in the present case. In the present case what is to be found is that where the money was paid by the plaintiffs, there was nothing, upon which it could be said that the defendant had received it as money belonging to the plaintiff for his use, and not for his own use, nor is there anything to infer reasonably that the plaintiffs intended at that time that the money in excess, which they paid as the price of the salt, which they had purchased from defendant No. 1 in order to get the delivery of the consignments on demand made by defendant No. 1 in the railway receipt, should remain their money in the hands of the defendant for their purpose, because it was only after this payment had been made and delivery had been taken that the plaintiffs raised the question that the defendant had taken more money than it was entitled to as the price of the salt. The delivery of the articles was not taken under protest informing at that time, the defendant or its agent—the bank that the excess money was their money which they were entitled to.

32. Moreover, in this case the plaintiffs had paid Rs. 1,200/- as advance. That sum when paid to and received by the defendant, could not be taken to have been received by the latter for the use of the former. It was clearly received by the defendant for its own use. The excess amount claimed is covered by this sum being Rs. 534-6-0 only. Why should not then the appellants have the benefit of contending that this amount could not be the money had and received in the sense contemplated by Article 62 so as to make their claim barred by limitation? I am clear in my mind that Article 62 cannot be applicable to this case.

33. I now proceed to discuss the remaining cases relied upon by the learned counsel for the parties. They illustrate the principles already stated.

34. In AIR 1942 Mad 386, the facts were that ‘A’ executed a pronote in favour of a Bank for the Joan advanced to him by the Bank and lodged certain shares which he had been holding in the Bank as security for the loan under the pro-note. ‘A’ died. Thereafter the Bank sold the shares and adjusted the sale proceeds against the debt due to the Bank, keeping the balance in suspense account to be paid to ‘A’ or his heirs. No notice of the sale was given to ‘A’. A's wife subsequently instituted a suit against the bank in respect of the Bank's shares, which stood in the name of her husband, and for payment of the balance to her, after debiting her with any liability incurred by her husband touching the shares. It was contended that the suit was governed by Article 62 of the Indian Limitation Act. But this contention was overruled.

35. It was observed that this Article was applicable to cases where the defendant had received money which in justice and equity belonged to the plaintiff, but in circumstances where the receipt by the defendant would be regarded in law as receipt for the plaintiff's use. But where the receipt by the defendant was on his own account and was not, or could not be regarded to be on behalf of the plaintiff, this Article had no application. In this case, although the facts are different, yet the principle in respect of the applicability of this Article does help the plaintiffs in so far as it shows that there must be circumstances where the receipt of the money by the defendant could be regarded in law as receipt by him for the plaintiff's use.

36. In ILR 4 Pat 448 : (AIR 1925 Pat 765), it was observed that in giving effect to a statute of limitation if two Articles limiting the period for bringing a suit are wide enough to include the same cause of action, and neither of them can be said to apply more specifically than the other, that which keeps alive rather than that which bars the right to sue should, generally apart from other equitable considerations, be preferred. This was a suit in which a patnidar had brought a suit to recover from the landlord a sum of money paid in excess of the amount demandable for cess, the relief being based on mistake. It was held that Article 96 and not Article 62, was applicable. This illustrates how Article 62 is strictly construed and its scope should not be enlarged.

37. In AIR 1948 All 75, the facts were that an application for winding up of a company had been filed on 31-8-1934. In 1935 a decree-holder, who had obtained a decree against the Company, realised his decretal amount, which was payable by third person to the company by attaching the bills for electric current consumed by those persons. The order winding up the Company was passed by the Judge on 2-9-1936. The Official liquidator applied to the Court for refund of the amount realised by the decree-holder, but that was rejected on 19-8-1940. On 24-8-1940 the liquidator filed a suit against the decree-holder for the refund of the amount. It was held that Article 62 was not applicable and the suit was governed by Article 120 of the Limitation Act. It was observed as follows:

“Article 62, Limitation Act, is clearly not applicable. Article 62 provides for a case where money payable to the plaintiff is paid to the defendant and is recoverable on that account. It contemplates cases of payment to servants and agents. So far as we can see, the only Article applicable to a case of this kind is Article 120, Limitation Act, as there is no other Article which can specifically apply.”

38. It seems, therefore, that the cases cited by the learned counsel for the appellants do support them to the extent that the Article in question should have limited application and should be applied only in those cases where there is clear proof of the facts that at the time of the receipt of the money by the defendant the receipt was for the plaintiff's use and not in any other case.

39. Coming to the cases cited by the learned counsel for the respondent, I would first deal with the Patna cases. 1 Pat LJ 374 : (AIR 1916 Pat 54), was a case in which money had been paid to one party with the implied intention that it should finally reach the hands of the party to whom it really belonged. In such circumstances of course it was clear that the person who had received the money had received it for the use of the person to whom it belonged, and, therefore, Article 62 was the proper Article to be applied. In this case, in spite of the fact that the proprietary interest of the original owner in a revenue paying estate had been sold in default of payment of revenue, the original owner had remained recorded in Register D as the proprietor of the estate and taking advantage of this fact, he had withdrawn the sale proceeds lying in the Collectorate.

40. In these circumstances it was held that there was implied intention that the money should actually reach the hand of the plaintiff who was the real owner of the estate by reason of purchase in the Revenue sale. The crucial question in this case was that at the time when the payment was made by the Collector's office to the defendant when he withdrew the money it was intended that the money should go to the real person who was entitled to it and, therefore, the defendant who had withdrawn the money, was held to hold it for the plaintiff. This is application of the same principle mentioned earlier, to the facts of this particular case, and nothing more.

41. There is nothing to support the respondent in the other case, namely, ILR 4 Pat 448 : (AIR 1925 Pat 765). I have already discussed that case because that was also one of the cases upon which the learned Counsel for the appellant, relied.

42. The learned Counsel for the respondent relied upon two Madras cases: AIR 1935 Mad 854 was a case in which certain properties of a judgment debtor were sold in execution of a decree. Later on the sale was set aside on the ground of irregularity. On the expiry of the prohibitory order some of the deposited amount was paid to the decree-holder. The purchasers sued the decree-holder for the return of the amount. It was held that the suit was for money had and received, and, therefore, Article 62 applied. This case does not another to me to be in line with the other cases which have taken a contrary view and from which one principle which is deducible is that when the money becomes payable by reason of a subsequent event. Article 62 does not apply.

43. I have already dealt with the fundamental principles upon which this Article is based. Apart from the question that the facts of the present case are different, here, there is no question of any sale having taken place. Here the question is of realisation of excess money by the defendant as his own on the ground that it was the price of the Balt supplied to the plaintiffs, which was by reason of the Government order, higher than the contractual rate. Different considerations, therefore, apply to this case from those on which the Madras case was decided.

44. AIR 1943 Mad 191 was a case in which the Municipality had realised certain taxes wrongfully. The suit was to recover them back. Article 62 was applied. The view taken in this case appears to me to be contrary to the view taken by the Privy Council in ILR 10 Cal 860, from which case it follows that a mere equitable claim to follow the money in the hands of the defendant is not governed by this Article. Moreover, in this case, in taking the tax without any right the Municipality was presumed to have taken the money for the use of the plaintiff by a legal fiction. That is not the case here.

45. The next case is AIR 1914 Lah 29. The facts were that the defendant had done some contract work for the plaintiff who had paid him certain sums of money. Later on the defendant obtained certain decrees for certain amounts of money for two of the works and recovered these amounts by levying execution. The plaintiff then sued for recovery of these amounts and also for the amount overpaid to the defendant. It was held that Article 62 of the Limitation Act applied. There does not appear to be any discussion in the judgment on this point. On the other hand, at one place I find that the learned Judges of the Lahore Court held that there was a total failure of consideration in respect of over-payment. If that was so, then that clearly distinguishes it from the present case and so far as the amounts which had been realised in execution of the decrees by the defendant are concerned, I think the view taken by the Lahore High Court is not shared by the other High Courts. For instance, see the case of ILR 5 Cal 597.

46. That was a case where compensation money for land taken up by Government has been lying in the Collectorate. The defendant took out the money as the mokarraridar of the land. But the plaintiff, after setting aside the mukarrari lease which had been improperly granted by his deceased aunt, sued to recover the money so received by the defendant. It was held that Article 62 of the Indian Limitation Act did not apply. That is obviously based on the principle that when money becomes payable by reason of a subsequent event Article 62 does not apply. Payability must exist at the time of the receipt of the money by the defendant (See also ILR 19 Cal 123 (PC) (Supra)).

47. The next case relied upon was ILR 39 All 322 at p. 332 : (AIR 1917 All 276 at p. 279), especially the observations made by Walsh, J. But this case is of no assistance to the respondent. The observations of Walsh, J. do not go beyond laving down the English law upon which Article 62 of the Indian Limitation Act is based.

48. The last case cited is AIR 1939 Nag 141, It was held in this case that a suit for overcharges against a railway company must be brought within three years under Article 62 of the Limitation Act. This position appears to have been assumed in this case. There was no argument on that point. I do not think this case can be an authority for the proposition contended for by the learned Counsel for the respondents.

49. After having considered the question as carefully as possible I think that the proper Article applicable to this instant case is Article 120 of the Indian Limitation Act and not Article 62. That being the position, it is clear that in this view the claim of the plaintiffs is not barred by limitation. The result, therefore, is that the appeal is allowed, the judgment and decree passed by the Court of appeal below are set aside and those of the trial Court are restored with this modification that there shall be a decree in favour of the plaintiffs for the amount claimed by them deducting Rs. 50/- which they claimed as cost of journey etc. incurred by them in connection with the settlement etc. of the dispute. The appellants shall get proportionate costs throughout.

R.G.D

50. Appeal allowed.