Dawson Miller, C.J:— (After stating the facts set out above, proceeded as follows:) Article 62 relates to a claim for money received by the defendant for the plaintiff's use and prescribes a limitation period of three years from the date when the money is received. Article 96 applies to a suit for relief on the ground of mistake and the period of limitation therein prescribed is three years from the date when the mistake becomes known to the plaintiff. It follows therefore, that if the latter Article is applicable the plaintiff is entitled to recover the whole sum claimed as the mistake was not discovered until within three years from the date of the suit. Apart from the question as to which Article applies, on the assumption that the excess payments were made by reason of a mistake on the part of the plaintiff, it has been contended on behalf of the defendants that the relief claimed in the plaint is based not upon mistake but upon fraud and that the case of fraud has failed. The relief claimed in the plaint is framed as follows:

“The plaintiff prays for the following reliefs:—

(a) A decree may be passed in favour of the plaintiff against the defendants for the refund of Rs. 9,606-4-0 as principal and interest as per account given below on account of the excess amount realized from him by the defendants' estate.”

Clauses (b) and (c) relate to costs and any other relief to which the plaintiff may be deemed entitled. It is true that in the body of the plaint where the facts are set out it is alleged that the landlords fraudulently realized from the plaintiff the excess amount every year and that, the defendants are liable to refund the same. At the same time paragraph 2 of the plaint alleges that the manager and amlas of the landlords shewed the karpardaz and son of the plaintiff a valuation roll with an entry of Rs. 17,714 as the valuation on account of their patni mahal and after having assured them collected from the plaintiff cesses according to the said valuation and the plaintiff continued to pay cesses according to the valuation as represented and assured by the manager and amlas of the landlords, and in paragraph 4 it is alleged that the plaintiff's suspicion having been aroused he obtained a copy of the valuation roll on the 12th April, 1919, and on perusal of it, it transpired that the correct valuation was Rs. 7,714 and that he afterwards claimed back the balance overpaid. The actual relief as claimed is not stated to be based either upon mistake or fraud but must be taken as based upon the facts alleged in the body of the plaint. In substance the plaint makes out a case of mistake induced by the representations of the defendants or their servants and whether these representations were fraudulent or not the ground upon which the plaintiff is entitled to recover, if at all, is that the payment was made under a mistake of fact as to his liability. Even in cases of fraud the foundation of the claim is based upon mistake for if the alleged fraud did not deceive the plaintiff he would not have any cause of action. It is true the charge of fraud has failed but the case of mistake has been amply proved and, in my opinion, the plaint is comprehensive enough to cover the relief claimed on that, ground.

It remains to consider which Article of the Limitation Act governs the present case. It is well established that where the relief claimed is covered by two Articles of the Schedule one being of general import, and the other of especial import applying to the particular facts of any case the latter shall govern. Article 62 undoubtedly covers many more cases than those of money paid under a mistake of fact. It is a general Article covering all cases covered by the well-known action in English law for money had and received by the defendant for the plaintiff's use. It would apply to cases of money received upon a consideration which happens to fail or of money rightfully received by the defendant for the plaintiff's use but wrongfully detained as also for money obtained, through extortion, deceit or oppression as well as to the case of money paid by mistake. Some of these cases are undoubtedly provided, for by later Articles in the Schedule. Instances will be found in Article 87 which relates to suits by the assured to recover premia paid under a policy voidable at the election of the insurers Article 89 which provides for suits by a principal against his agent for moveable property received by the latter and not, accounted for and Article 97 which relates to suits for money paid upon an existing consideration which afterwards fails. In each of these cases the commencement of the period of limitation is different from that provided in Article 62 and the provision made with regard to the special cases would govern rather than that provided as to the commencement of the period of limitation in Article 62. If Article 96 provided specifically for the case of a suit to recover money paid under a mistake and nothing more there could be no doubt that that, Article rather than Article 62 would govern the present case. Article 96, however, is itself an Article of general import and covers all cases in which relief is sought, on the ground of mistake. It would, for example, cover the case of a suit for rectification of a document on the ground of mutual mistake, and other reliefs relating to moveable as well as immoveable property.

In Mathura Nath Kandu v. Steel a suit by a tenant to recover from the landlord a sum of money paid in excess of the amount demandable for cess, the High Court at Calcutta applied Article 96 but in that case it does not appear to have been contended that Article 62 was applicable. In Hanuman Kamat v. Hanuman Mandur the claim was to recover purchase money on the ground of failure of consideration. Their Lordships held that if there never was any consideration from the beginning the price paid was money had and received within Article 62 but they were inclined to think that the consideration did not fail at once so as to render the contract void but only when the purchaser could not obtain possession of the property and that the consideration then failed so that the case appeared to them to come within Article 97. It was not necessary, however, to decide definitely which of these Articles should be applied as in either case the suit was barred. In Dharamchand v. Goulal a case decided in the Court of the Judicial Commissioner of Nagpur the claim was to recover the purchase price paid for a house and it was held that in such cases it was only where the sale was void ab initio that Article 62 applied but where the consideration subsequently failed Article 97 being more specific would govern. But no case has been drawn to our attention in which it was directly determined whether Article 62 or Article 96 should be preferred in a suit to recover money paid by the plaintiff to the defendant by mistake in excess of the amount legally due. It has been determined by the High Court at Madras that relief sought on the ground of fraud within the meaning of Article 95 is governed by that Article and not by Article 62 or Article 97. [See Moidiyan's son Ambialath Vettie Punnayil Kuttu v. Anedath Valiyil Lakshmi Ammal's son Raman Nair.]

On the whole I am of opinion that the intention of the legislature was that in cases where the relief is based on mistake the period of limitation should run from the time when the mistake was first discovered even if some other Article in the Limitation Act should be wide enough to include the cause of action. Otherwise in many cases the relief would be barred before the plaintiff could possibly be aware that he had a right to sue. The remedy in such a case as the present is provided by section 72 of the Contract Act which enacts that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it and it seems to me reasonable to suppose that it was not the intention of the legislature in passing the Limitation Act to take away that remedy in the case of money paid under mistake merely because the mistake remained undiscovered for three years from the date of payment. Moreover, I consider that, in giving effect to a statute of limitations if two Articles limiting the period for bringing the 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 and apart from other equitable considerations be preferred. This applies I think with particular force to a case like the present where if Article 62 should be held to govern the plaintiff through no laches or delay on his part would be deprived of his remedy before he could reasonably become aware that he had a remedy at all.

It was argued, however, that the plaintiff ought to have been aware all along that the correct valuation was the lower figure because his copy of the cess valuation roll must have disclosed it. As against this the plaintiff deposes that he never received a copy of the revised valuation roll in 1910 but accepted the correctness of the defendants' copy whilst the defendants' witness Manmohan Das alleged that the plaintiff had a copy of his own and that the valuation there mentioned was also the larger figure. Neither of the copies was produced in evidence but whichever version be correct there can be no doubt that the plaintiff was acting under a bona fide mistake in making the excess payment. Nor is there any reason to suppose that the plaintiff if he was aware of the correct valuation as he must have been if he received a correct copy of the register would voluntarily pay cess based upon a larger figure.

It was also argued that the cess was in fact paid under legal process and therefore could not be recovered back until the decree or order compelling payment had been set, aside. The argument rests solely upon an answer given by the plaintiff in cross-examination that his rents were usually realized under the patni sale law. What the exact significance of this statement may be is left in doubt but, the point was never taken either in the pleadings or before the Judge in the trial Court nor was any issue framed with regard to it before the trial. There is, in my opinion, no evidence sufficient to justify a finding that the excess payments made in this case were made under legal compulsion. I am of opinion that the claim is governed by Article 96 of the Limitation Act and that the suit is not time-barred. [The remainder of the judgment which related to a preliminary point taken by the defendant that the appeal had abated as against, the representatives of Syed Mohiuddin Mirza, is not material to this report.]

The result is that the decree of the learned Subordinate Judge will be varied by ordering that the respondents Syed Mohiuddin Mirza and Mr. Patridge as Administrator of the estate of the deceased Syed Mohiuddin Mirza are liable severally for a moiety of the sums paid in excess of the amounts of cess due for the years 1318 to 1325, M.S, amounting to Rs. 5,000. In the circumstances these sums will carry no interest up to the date of this decree but interest at 6 per cent, per annum will be payable on the amount awarded hereunder from this date up to the date of realization.

The appellant is entitled to the costs of this appeal from the first defendant who alone has contested the appeal. Each party will bear his own costs of the application for setting aside the abatement.

Foster, J.:— I agree.

Decree varied.