Regular Appeal from a decree passed by the Second Subordinate Judge of the 24-Pergunnahs.
This suit was brought for the refund of Rs. 9,321-4-4, with interest thereon, amounting in all to Rs. 18,498-12-3. It appears that defendant's predecessor instituted a suit for enhancement of rent in the Court of the Principal Sudder Ameen of the 24-Pergunnahs against plaintiff's predecessor, and obtained decree against him on the 29th of June 1863. That decree was substantially confirmed by the Judge and the High Court with very slight variation, but was reversed by the Privy Council by a decree made on the 5th of May 1873. In the meantime the landlord obtained sixteen other decrees for rent at the enhanced rate on the basis of the former decree, the amount of which he realised by execution.
Plaintiff's case was that the decree of the Privy Council of the 5th of May 1873 gave them a cause of action for a refused of the excess above the usual rent paid under execution of the several decrees for rent. A Full Bench of the High Court (Garth, C.J, and Jackson, J., dissenting) held that the suit would lie, (see 1 C.L.R, 5), and the case was then sent back to the Division Bench for the disposal of the points of limitation and interest.
Mr. Twidale and Baboo Chunder Madhub Ghose, for Appellant.
Baboo Prannath Pandit, for Respondent.
The following judgments were delivered by the Court (1):—
Garth, C.J:— A majority of the Full Bench having decided that this suit will lie, the only question which we have now to decide in this appeal is, whether the plaintiff is barred by limitation.
The claim being entirely one of a novel character, it is some-what that difficult to say what provision in the Limitation Act should be applied to it. The defendant's pleader contends that the suit is for damages for taking excessive rent, and therefore that section 27 of the Rent Law is applicable. But I am clearly of opinion that this is not a suit for damages, or one coming at all within the scope of the Rent Law. There is also some difficulty in treating it as a suit for money had and received. The 60th article of the Limitation Act provides, that in such a suit the three years is to run, not from the time when the cause of action accrues, but from the time “when the money is received;” and the money claimed in this suit was no doubt received by the defendant at the time when it was paid under the decree. Probably the safer and more correct course is to hold, that it comes under article 118 of the Limitation Act, as being a suit for which no period of limitation is elsewhere provided. It certainly is a suit which until lately was quite unknown to the law, and which, therefore, could hardly have been in the contemplation of the Legislature the time when the Limitation Act was passed. In that view the claim of the plaintiff is not barred.
Then as regards the question of interest, I think the Subordinate Judge's observations are very sensible. It may be doubted, whether in such a case as this we have any power at all to award interest; but assuming that we have, I think that in the exercise of our discretion we ought to disallow the claim. It is clear that after the first decree for enhanced rent, the defendant was perfectly justified in obtaining the subsequent decrees, and in receiving the money under them; and no part of that money can be said to have been legally or morally due from him until the judgment of the Privy Council was given on the 25th March, 1873. No notice of that judgment was ever given to the defendant by the plaintiff in the present suit, nor was he informed in any way that he was expected to refund any portion of the money paid under the subsequent decrees, until the proceedings in this suit were actually commenced. Under these circumstances, I think it would be very unfair to award any interest against him. Both appeals are, therefore, dismissed with costs.
McDonell, J.:— I concur in holding that this suit comes under Article No. 118 of the second schedule of Act IX of 1871, and that consequently it is not barred by limitation. I also think that under the circumstances of the case, the Subordinate Judge used a wise discretion in disallowing the claim for interest, and therefore agree in dismissing both appeals with costs.