Kasaraneni Adinarayana Murthy and others vs Alapati Venkata Subba Rao

This second appeal is filed against the decree and judgment in AS No.27 of 1985 on the file of the Principal Subordinate Judge, Tenali, confirming the decree and judgment in OS No.76 of 1978 on the file of the 1 Additional Munsif Magistrate''s Court, Tenali.

Defendants in the suit whose defence was not believed by both the Courts below are the appellants herein. The suit is filed for recovery of a sum of Rs.7,940-35 ps, being principal and interest due to the plaintiff by the defendants, by way of reimbursement of the amount of Rs.6,248-35 ps, with interest thereon at 9% per annum from 8-11-1974. The case of the plaintiff is that his father Alapati Rajaih and the defendants'' father Kasaraneni Ankineedu along with one Vuppala Venkata Subbaiah and Puvvada Satyanarayana did joint business under the name of ''Sri Kanyaka Parameswari Rice Mill'' by its manager Alapati Rajaiah. After some time, disputes arose between the partners of the firm and the firm was later dissolved. Consequently, number of suits were filed against the firm. Further, one of the partners of the firm i.e., the father of the defendants-Ankineedu filed a suit OS No.127 of 1956 on the file of the District Munsif s Court, Repalle, against the other partners i.e., the father of the plaintiff Rajaiah and two others, for settlement of accounts of the firm. The said suit remained pending for a considerably long period. In that suit, a preliminary decree was once passed on 11-2-1968 but the same was set aside by the appellate Court and the suit was remanded to the trial Court for fresh disposal. Meanwhile, Ankineedu, the father of the defendants, died on 28-8-1959 and the defendants and also their sisters were impleaded therein. In the year 1968, Rajaiah, the father of the plaintiff, also died. The plaintiff and his four brothers and two sisters were impleaded therein as D4 to D10. After remand of the suit, the parties compromised the dispute. As per the said compromise, an amount of Rs.10.QOO/- was paid by the 1 st defendant to Rajaiah, plaintiffs father, on 14-2-1962 in final settlement of all the disputes between the parties. To the above effect, the 1st defendant represented before the trial Court by filing a receipt for Rs.10,000/-signed by Rajaiah into Court. It is recited in the receipt that all the pending disputes between the parties are settled and as per the terms of the compromise, Rajaiah agreed to file memos of adjustment in all the pending suits between the parties i.e., OS No.38 of 1959, OS No.40 of 1959, OS No.54 of 1956 on the file of Sub-Court, Tenali and SA No.97 of 1959 and SA No.537 of 1959 on the file of A.P. High Court and also in OS No.127 of 1956. Thereupon, OS No.127 of 1956 was dismissed by the trial Court on 4-8-1970.

While so, Rajaiah, plaintiffs father, filed a suit in OS No.73 of 1956 against one Alapati Suryanarayana and others in his individual capacity for specific performance of a contract. The firm is in no way concerned with the said suit transaction. In the said suit, Rajaiah got attached an amount of Rs.6.248-35 (which is lying in another suit OS No. 105 of 1953 on the file of Principal Subordinate Judge, Tenali) before judgment. The said suit was decreed later. Be that as it may.

One K. Atchciiah (who is the brother of defendants1 father A'', Ankineedu) filed a suit in OS No.43 of 1957 on the file of Principal Subordinate Judge, Tenali, against the firm, for recovery of certain amount on the basis of a pronote. The said suit was decreed against the firm. Thereafter. Atchaiah levied execution against Rajaiah, plaintiffs father, and got attached the amount of Rs.6,248-35 paise which was already got attached by Rajayya in his individual suit in OS No.73 of 1956. Subsequently, Atchaiah also withdrew the attached amount. Since the decree obtained by Atchaiah in OS No.43 of 1957 is against the firm but execution was levied against one of the partners of the firm (i.e., Rajaiah), the plaintiff in the present suit being the legal heir of Rajaiah now seeks to recover the said amount of Rs.6,248-35 ps., which was withdrawn by Atchaiah by attaching it in execution, from the defendants who are the legal heirs of the other partner Ankineedu. Hence, the suit,

The defendants resisted the suit contending that under the terms of the compromise which was arrived at between the parties in OS No.127 of 1956, all the liabilities of the firm were to be discharged by plaintiffs father (Rajaiah) and the other partner Uppala Venkata Subbaiah only and, therefore, the defendants are not liable to reimburse the suit amount. It is contended that the attachment of the amount in Atchaiah''s execution proceedings was actually ordered on 19-10-1974 and the limitation to file the present suit starts to run from that date onwards for a period of three years. But, the suit which is filed on 8-11-1977 is, therefore, barred by time, [t is also contended that the suit is also barred by the principle of ''''res judicata'' by virtue of the judgment in OS No.127 of 1956.

On the aforementioned pleadings, trial was conducted in the trial Court and on a consideration of the entire evidence, both oral and documentary, the trial Court decreed the suit with costs. The appellate Court confirmed the said findings of the trial Court. Hence, the present second appeal.

Before this Court, the learned Counsel appearing on behalf of the appellants mainly concentrated his arguments on the question of limitation. It is his contention that under Article 48 of the Schedule attached to the Limitation Act, 1963, the suit ought to have been filed within three years period from the ''date of payment in excess of the plaintiffs own share'' and that the payment in excess of the plaintiff s share was made on the date when Atchaiah got attached the amount on 19-10-1974, from which date onwards, the plaintiff had actually lost dominion over the said amount and, therefore, the limitation starts to run from 19-10-1974 onwards, in which case, the suit is barred by limitation. It is, therefore, contended that both the Courts below grossly erred in holding that the limitation started to run from 9-11-1977, on which date Atchaiah actually received the attached amount in the form of cash. According to the learned Counsel, both the Courts below have misinterpreted the terms of Article 48.

But, learned Counsel for the respondent plaintiff strenuously contended that for the purpose of reckoning the period of limitation under Article 48, the date on which actual payment is received must be the date from which the limitation starts to run and not from the date of attachment as contended by defendants. It is, therefore, contended that the concurrent findings recorded by both the Courts below need not be disturbed in this second appeal.

As per the extract of the suit register, decree in OS No.43 of 1957 on the file of Sub-Court, Tenali, which was filed by Atchaiah, was passed on 20-12-1957. The said decree was sought to be executed by Atchaiah by filing various EPs. EP No134 of 1973 is relevant. In that EP, the executing Court, by order dated 10-10-1974, ordered to send for the amount lying to the credit of OS 105 of 1953 on the file of Sub-Court, Tenali. The amount from OS No.105 of 1953 on the file of Subordinate Judge''s Court, Tenali, was transferred and adjusted to the credit of Atchaiah''s v EP i.e., EP No.134 of 1973 on 19-10-1974. The executing Court issued a cheque for Rs.6,248-35 on 7-11-1974 in favour of Atchaiah''s Advocate and the Court also recorded part-satisfaction of the decree on the same day. The said cheque was enchased by Alchaiah on 9-11-1974. The plaintiffs contention, as already mentioned, is that the limitation under Article 48 starts to run from the date when Atchaiah actually encashed and received the cheque amount i.e., 9-11-1974. Under Article 48, a suit can be brought for reimbursement of the amount contributed by the plaintiff against the defendants within a period of three years from the date of such contribution or payment made by the plaintiff in excess of his own share. Thus, as per the provisions of Article 48, the time starts to run from the date of ''payment in excess of the plaintiffs own share''. Now, it has to be seen whether actually on what date, the payment or contribution was made by the plaintiffs father. As already pointed out, the executing Court i.e., Sub-Court, Tenali in EP No.135 of 1973 in OS No.43 of 1957 attached the amount of Rs.6,248-35 ps., which was already got attached by plaintiffs father in his individual suit OS No.105 of 1953, Sub-Court, Tenali. The said attachment was made by the executing Court at the instance of Atchaiah, which was physically effected on 19-10-1974. On that date, the amount was got transferred from the credit of OS No.105 of 1953, Sub-Court, Tenali, to the credit of EP No.134 of 1973 in OS No.43 of 1957, Sub-Court, Tenali, Vide Bank Receipt No.219 dated 19-10-1974. The said factum is clearly noted down in the suit register maintained in OS No.43 of 1957, the extract of which is placed before me. Thus, by virtue of the said transfer and adjustment made on 19-10-1974, in EP No.134 of 1973, the executing Court was physically holding the amount of Rs.6,248-35 ps., on behalf of Atchaiah, which amount was earlier held by the same Court (Sub-Court, Tenali) on behalf of the plaintiffs father in his individual suit (OS No.73 of 1956). Thus, from 19-10-1974 onwards, the plaintiffs father had lost dominion over the said attached amount and at the same time, Atchaiah came to hold the said amount in execution proceedings. In other words, from 19-10-1974 onwards, the executing Court was holding the amount on behalf of Atchaiah. If Atchaiah wanted to withdraw the said amount, he was at liberty to withdraw the same on the very same day and if he does not want to withdraw the amount, he can as well allow it to remain in the custody of the executing Court. But, when coming to the plaintiffs father, right from the moment when the amount is transferred from OS No.105 of 1953 and adjusted to the credit of EP No.134 of 1973, his right of dealing with the said amount came to an end. In other words, he lost dominion over the said amount from the moment when it was transferred from OS No.105 of 1953 to EP No.134 of 1973. If he wanted to withdraw the said amount, he was free to do so till the Court could effect the actual transfer, but when once the transfer is effected, the plaintiffs father cannot withdraw that amount as, after such transfer the Court took custody of that amount on behalf of Atchaiah and after the transfer, Atchaiah alone can do so. Thus, by virtue of the attachment made on 19-10-1974 at the instance of Atchaiah, the plaintiffs father shall be deemed to have made ''payment'' in excess of his own share to Atchaiah. Therefore, the limitation starts to run from 19-10-1974 onwards. A decision of the Calcutta High Court in Brajeshwary Dasi Vs. Nityananda Das, , is directly on the point. The observations of Cammiade, J., are relevant to be mentioned hereunder:

"The plaintiff, in order to obtain extension of the period of limitation allowed to him under Article 99, Limitation Act seeks to take advantage of the fact that ten days elapsed between the dale on which the money was put in by him and appropriated by the Court to the satisfaction of the decree and the date of the actual withdrawal of that money by the decree-holder. As my learned brother has pointed out, if the plaintiff s contentions were correct, it is to be feared that many persons would be precluded from suing persons jointly liable with them for sums paid by them in excess of the money due from them merely on account of the fact that the decree-holder had failed to withdraw the money from Court. It is conceivable that from many causes, either accidental or due to neglect or wilful omission on the part of the decree-holder, the money in deposit in Court and appropriated to the satisfaction of the decree may remain unpaid to the decree-holder for a number of years; and, if the contention of the plaintiff-respondent were correct as long as the money was not withdrawn by the decree-holder, the person who made the deposit would have no right to recover anything from his co-debtor. This would be an entirely absurd position. The criterion must always be whether or not the deposit made in excess of what is due by the person making the deposit did or did not remain under the control of the person making it. Obviously, when the Court has passed an order to appropriate the money deposited to the satisfaction of the decree, that money ceases to be under the control of the person making the deposit. After such an order has been made it would no longer be open to the depositor to apply for withdrawal of that money. The only person entitled to apply for its withdrawal would be the decree-holder or any other person entitled through him. In the present case, such an order for appropriation was passed by the Court on 4th February, the date on which deposit was made, and from that date limitation must run under Article 99, Limitation Act."

In the above cited case, the plaintiff and the defendant were co-sharers in a certain taluk. The landlords of the taluk obtained a decree for rent and when the property was advertised for sale, the plaintiff deposited the entire decretal amount in Court which was accepted by the Court and the landlord''s decree was recorded as satisfied. The deposit was made by plaintiff in Court on 4th February, 1920 but the money was actually withdrawn by the decree holders on 14th February, 1920. Thereafter, the plaintiff instituted the suit for contribution against his co-sharer on 15th February, 1923, 14th February, 1923 being a holiday. The question was whether the said suit was within time. In those circumstances, the Division Bench of the Calcutta High Court held that actual payment shall be taken as the criterion for reckoning the period of limitation. In the above cited case, there are two separate causes of action; one is the deposit by the plaintiff into Court and the other is its acceptance by Court. The plaintiff in that case contended that limitation starts to run on the date when the Court had actually received the amount and appropriated to the satisfaction of the decree hut not on the date when actual deposit was made by him, which was rejected by the Calcutta High Court. The Calcutta High Court held that the criterion must always be whether or not the deposit made in excess of what is due by the person making the deposit did or did not remain under the control of the person making it. In the instant case, unlike the above cited case, there is no deposit as such. Here, the payment is directly effected by the order of the Court, due to which, the amount lying in OS No.105 of 1953 was transferred to EP No. 134 of 1973 and consequently, the plaintiff lost dominion over the amount in OS No.105 of 1953 from that day onwards. Thus, the mode of payment in this case is more direct and in any case, even as per the decision of the Calcutta High Court, the date on which the Court transferred the amount from OS No.105 of 1953 to EP 134 of 1973 is the date from which the limitation starts to run. The view of the Calcutta High Court was also followed in the subsequent decisions reported in Meghavaranam v. Md. Mohideen Sahib, AIR 1936 Mad. 782, and also Karanam Venkaiah v. Venkatesu Reddy, 1958 (II) An.WR 339.

Learned Counsel for the respondent-plaintiff cited Armada Mohun Ray v. Maniruddin, AIR 1917 Cal.203 and Murlidhar v. Naunihal Singh, AIR 1932 Oudh 222. In Annada Mohun''s case, the plaintiff being the co-tenant, deposited the decretal amount into Court in excess of his own share on 5-11-1908. Since the deposit was made in the absence of decree holder''s pleader, the Court directed the matter to stand over till 14th November for Orders. On 14th November, since no objection was raised to the deposit, the Court directed the amount to be received. In the suit instituted subsequently by the plaintiff for recovery of such amount, the question was whether the limitation runs from the date of deposit or from the date on which the Court accepted the amount. The Calcutta High Court, having regard to the circumstances of the case, held that until the Court accepted the money on 14th November, there was no payment. Placing reliance on the decision of the Calcutta High Court cited supra in Annada Mohun ''s case, learned Counsel for the respondent-plaintiff tried to contend that as was held in Annada Mohun''s case, the limitation starts to run from the date on which the money was actually received by Atchaiah. But, there is a slight difference in the modes of payment in above cited case and in the present case. In the instant case, the ''payment'' made and the amount received by the Court was on one and the same day when the Court transferred the amount from OS No.105 of 1953 to EP No.134 of 1973. But, in the above cited case, the payment was made on some day and the Court actually received on the other day. In those set of circumstances, the Calcutta High Court held that the date on which the money was actually received by Court is the date for reckoning limitation. Even though the mode of payment is different in the above cited case, the ultimate ratio laid down by the Calcutta High Court is very much applicable to the facts of the present case, as, even according to the decision of the Calcutta High Court, it must be the date on which the amount was actually received by Court and not the date on which the party received the amount. Therefore, this decision of the Calcutta High Court and the other decision relied upon by the learned Counsel for the respondent, the facts of which are similar to the decision in Calcutta High Court, are not helpful to the plaintiffs case. On the other hand, the ratio laid down in these two decisions also lend support to the view taken by me in the instant case. Therefore, the contention of the learned Counsel for the plaintiff is rejected.

For the above reasons, I am of the view that the limitation began to run in this case from 19-10-1974, the date on which the amount lying to the credit of OS No. 105 of 1953 is transferred and credited to EP No.134 of 1973. The suit, which is filed on 8-11-1977, is, therefore, barred by limitation as it is filed after the period of 3 years. The suit is, therefore, liable to be dismissed as time-barred. Both the Courts below have misinterpreted the provisions of Article 48.

In the result, the second appeal is allowed and the suit is dismissed. No costs.