JUDGMENT
(Delivered by The Chief Justice).
The question in this appeal is one of limitation. The appeal has been filed against the judgment of Chandrasekhara Aiyar, J. in a second appeal confirming the dismissal of a suit filed by the appellant in the Court of the District Munsif of Srivaikuntam. We consider that the appeal is well founded.
In the year 1935 the first defendant instituted in the Court of the District Munsif of Tinnevelly Small Cause Suit No. 2391 of 1935 against one Paramuthu Kudumban for the recovery of Rs. 99 alleged to be due by way of rent. The first defendant applied for the attachment before judgment of two brick kilns which he alleged belonged to Paramuthu Kudumban. The application was granted and the attachment effected. As it was not possible to remove the kilns, the Amin left them in the custody of the first and second defendants on their entering into a security bond for the sum of Rs. 1500. The bond was executed on the 19th December 1935. On the 17th January 1936 the plaintiff filed a petition under O. 21, R. 58 of the Code of Civil Procedure objecting to the attachment on the ground that the kilns belonged to him. On the 25th January 1936 the plaintiff filed an interlocutory application (No. 56 of 1936) asking the Court to direct delivery of the kilns to him. He had deposited in Court the amount of the first defendant's claim. The District Munsif heard the application on the same day. He passed an order cancelling the attachment and directing the first and second defendants to deliver the kilns to the plaintiff. The delivery was effected on the 26th January 1936. The plaintiff then discovered that all the bricks had been removed from one kiln and a quarter of the bricks from the other kiln. On the 5th February 1936 the District Munsif passed an order closing I.A No. 56 of 1936. On the 4th March 1936 he dismissed the first defendant's suit and allowed the plaintiff's petition under O. 21, R. 58. On the 16th March 1936 the plaintiff filed E.P No. 370 of 1936 to enforce the security bond to the extent of Rs. 1458, the value which he placed on the bricks which had been removed from the kilns. This application was dismissed on the ground that the plaintiff's remedy was by suit and not in execution proceedings. Thereupon he applied to this Court for revision (C.R.P No. 1209 of 1936.) On the 25th January 1939 while the civil revision petition was pending, the plaintiff filed the present suit. On the 24th October 1939 this Court heard the application for revision. The defendants conceded that the plaintiff had a remedy by way of suit and contended that the question of their liability should be decided in the suit and not in the execution proceedings. The Court accepted the contention and left the rights of the parties to be decided in the present suit.
The suit was originally filed in the Court of the District Munsif of Tinnevelly but was transferred to the Court of the District Munsif of Srivaikuntam who delivered judgment on the 12th December 1940. The District Munsif held that the suit was maintainable and that the plaintiff had suffered loss to the extent of Rs. 703-10-0 but he considered that the plaintiff's remedy was barred by the law of limitation. In his opinion the suit fell within Art. 29 of the Limitation Act. The plaintiff no appealed to the Subordinate Judge of Tinnevelly, who agreed with the District Munsif that the suit was barred by the law of limitation. He also held that the suit was not maintainable. It was not open to the defendants to question the maintainability of the suit as in the revision proceedings they had conceded that the plaintiff's remedy was by way of suit. This did not, of course, prevent them from raising the contention that the suit had been filed out of time. The plaintiff then appealed to this Court and the only question raised was that of limitation. The appeal was heard by Chandrasekhara Aiyar. J. who held that the suit was time barred, whether the appropriate article was Art. 29 or 48 or 49. The learned Judge considered that the period of limitation commenced from the date of the bond, namely, the 19th December, 1935. Here the learned Judge erred. The suit was not on the bond. It was a suit for compensation for the wrongful removal of the bricks. If it had been a suit on the bond, the appropriate article would have been Art. 68 which fixes the period of limitation at three years from the date when the condition of the bond is broken, and the suit would have been in time. The date of the breaking of the bond must be taken to be the 26th January 1936 when the first and second defendants failed to deliver the kilns in the same condition as they were in when they were left in their custody on the 19th December, 1935. Mr. Swaminatha Aiyar on behalf of the appellant, has frankly conceded that the suit is not one on the bond, and therefore nothing more need be said about Art. 68.
For the defendants it has been contended that the District Munsif was right in holding that Art. 29 applied. It is clear, however, that this article does not apply. It provides a period of limitation of one year for a suit for compensation for wrongful seizure of moveable property under legal process, the year commencing from the date of the seizure. This is not a suit for compensation for wrongful seizure of moveable property under legal process. As we have already said, it is a suit for compensation for wrongful removal of the bricks.
The only articles which can possibly apply are Arts. 48 and 49. Art. 48 relates to a suit for specific moveable property lost or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the property. The period is three years from the date when the person having the right to the possession of the property first learns in whose possession it is. The suit cannot be said to fall under this Article because it is not suggested by the plaintiff that the property is now in the possession of the defendants and the claim is not made on that basis. We are of opinion, however, that the suit falls within Art. 49. This article relates to a suit for specific moveable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the property. Here the period is three years from the date of the wrongful taking. The plaintiff says that these bricks were removed by the defendants; and if the defendants were responsible for their removal or allowed them to be removed the suit will lie against them and it will be in time because the wrongful removal must have taken place on the 26th January 1936 and the suit was filed within three years of that date. It has, however, not been found that the defendants were responsible for the wrongful removal of the bricks. This question will have to be investigated by the trial Court We hold that the suit is within time and consequently the appeal must be allowed.
The case will be remanded to the trial Court for a decision on the question of the defendants' responsibility for the removal of the bricks. If the trial Court holds that the defendants are liable, the District Munsif will pass a decree in favour of the plaintiff for Rs. 703-10-0, the amount which he has found to be the value of bricks removed. The new decree will be appealable to the Subordinate Judge both on the question of liability and on the question of the amount of compensation. The effect of this judgment is that the decree of the Subordinate Judge on first appeal is entirely set aside.
The appellant is entitled to his costs in the Subordinate Court, before Chandrasekhara Aiyar, J. and in this Court. The costs of the trial Court will abide the further hearing. He is also entitled to a refund of the Court-fee paid on his appeal to the Subordinate Court, the Court-fee paid on the second appeal and to that paid on the Letters Patent Appeal.
N.R.R