Krishna Kudva (Decea... v. Muli Sri Venkatarama...

The defendant was the trustee of a temple and the plaintiffs succeeded him in January 1922. They filed this suit in 1923 to recover from the defendant a certain sum of money which he had taken from the temple funds for the expenses of a litigation to remove him from the trusteeship and have a scheme framed. Both the lower Courts have given the plaintiff a decree for the amount claimed.

Mr. Sitarama Rao (for the appellant) contends that the claim must be held to be barred by limitation as it cannot be held to fall under S. 10 of the Limitation Act in view of the observations of the Privy Council in Vidya Varuthi v. Balusami Ayyar (2) that in the case of these temples it cannot be said that there is any property vested in the trustee in the English sense. It seems to me unnecessary to deal with that contention though there are one or two observations in the lower Court's judgment which rest upon the basis of the applicability of S. 10. As the lower Court points out, the defendant was the trustee of the temple till January 1922, and no cause of action accrued to anybody else as long as he continued to be the trustee. The plaintiffs have filed this suit within 2 years of their assuming office. The case in Jaisth Madho Achariyaji v. Thakur Sri Gat Ashram Narainji on which Mr. Sitarama Rao relies no doubt supports his contention as to the inapplicability of S. 10 to circumstances like those of the present case. It is also true that in that case the learned Judges applied Art. 62, but the particular Article applicable does not seem to have been discussed before them. There were other Mutawallis managing along with the defendant and that is perhaps the reason why it was assumed that if S. 10 was out of the way, the suit would be governed by Art. 62. Further it is not possible to gather from the report the material dates with reference to which one could say whether even the application of Art. 120 would have made any difference in the result there. The language of Art. 61 is that it applies to a suit for money payable to the plaintiff for money paid for the defendant. It is difficult to see how the present suit falls within that description and it seems to me equally difficult to describe the present suit as one for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use within the meaning of Art. 62. The case has really to be governed by Art. 120.

Mr. Sitarama Rao however contends that apart from the objection on the score of limitation the present suit is really barred under O. 11, R. 2 by reason of the fact that these very plaintiffs had instituted an earlier suit (O. S. No. 1 of 1923 on the file of the same Court) for recovery of certain amounts taken by the defendant for depositing the same in Court in pursuance of the first Court's decree in O.S No. 26 of 1915. In this connection Mr. Sitarama Rao relied upon a case in Monohur Dass v. Baboo Seetul Pershad which lays down that successive suits cannot be brought against an agent for different sums misappropriated by him at different times and that the proper remedy is a single suit for accounts. Whether the reasoning in that case will exactly apply here or not, I should have been disposed to give more serious consideration to this objection of Mr. Sitarama Rao if I had before me materials which will enable the Court to come to a satisfactory conclusion on this point. It cannot be said to be an abstract question of law and the pleadings in O.S No. 1 of 1923 are not part of the record in this case. No such objection seems to have been raised in either of the Courts below and it seems to me unsafe to base a decision on this point merely on the judgment in that suit which has been filed as Ex.D

In this view the second appeal fails and is dismissed with costs.

N. R. R.Appeal dismissed.