Upendra Chandra Singh vs A.B. Chioditti

Jwala Prasad, J.—The finding of facts now arrived at on remand by the District Judge of Bhagalpur disposes of this appeal, It has been found that the summonses were properly served by the plaintiff on the 30th September 1911 and that the plaintiff was not kept out of the knowledge of the decree of November 1911 by fraud on the part of the defendant. Further that the plaintiff did not come to know of the sale for the first time on the 8th March 1913 as alleged by him. The plaintiff''s suit, therefore, to set aside the decree, is barred by limitation. It has been contended by Mr. Mullick on behalf of the appellant that notwithstanding this finding, the suit is not barred under Article 95 of the Indian Limitation Act; and in support of that authority the case of Rahimbhoy Habibbhoy v. C.A. Turner 17 B. 341 : 201. A. 1 : 6 P.C.J. 256 : 17 Ind. Jur, 40 : 9 Ind. Dec. 222 has been quoted. It is contended that on the strength of that authority it was for the defendant to show that the plaintiff had clear and definite knowledge of the facts Constituting the fraud at a time which is too remote for the suit to be brought, that is, beyond three years. In the present case the suit was to set aside the decree obtained in November 1911. It has been proved by the defendant that the summons in the suit was served upon the plaintiff on the 30th September 1911. It is, therefore, a sufficient proof that the facts alleged by the defendant in the plaint, the basis of his claim, were perfectly known to the plaintiff and, therefore, he was also fully aware of the decree sought to be set aside. I, therefore, do not agree with the view of Mr. Mullick and hold that the suit on the findings of the Court below is barred by limitation.

The next question raised by Mr. Mullick is one of some interest. It was not raised at the time when the appeal was originally heard but that does not to my mind disentitle him from raising the question, if there be any substance in it. This contention is based upon relief No. 3 in the plaint relating to the claim for the refund of the money paid under the decree said to be fraudulent. It is again founded upon the fact that the Munsif held that the rent for the holding was only Rs. 24 odd and that though the finding was set aside by the learned District Judge, it was, reaffirmed by this Court in second appeal. It is contended on behalf of the appellant that the real rent being Rs. 24 and that the decree obtained for Rs. 42 odd being fraudulent in execution of which a much larger sum than what was due from the plaintiff was realised by force of process of law, the plaintiff is entitled to a refund of the excess amount although the decree cannot be set aside on account of the claim having been barred by limitation. In support of this contention the Full Bench case of Kalichurn Dutt v. Jogesh Chunder Dutt 2 C.L.R. 354 has been cited. In that case a decree at an enhanced rate was obtained by the landlord and an appeal against that decree was pending in the Privy Council. In the interim the landlord obtained several rent decrees on the basis of the first decree which was in appeal in the Privy Council. The first decree was reversed ultimately by their Lordships of the Privy Council and the suit was brought for a refund of the money realised under the subsequent decrees at an enhanced rate. It was held that in the setting aside of the first decree all the subsequent decrees were also affected and virtually set aside and that the plaintiff was entitled to a refund of the excess amount realised from him. It was also held that the suit for such a claim should have been brought within six years under the general article of the then Limitation Act. There can be no doubt that the general principle on the point is laid down in Marriot v. Hampton (1797); 2 L.C. 421 : 403 7 T.R. 26 : 2 Esp. 546 : 101 E.R. 969 : 4 R.R. 439, namely, that money recovered which has been paid by the plaintiff to the defendant under a compulsion of legal process which was afterwards found not to have been due, cannot be recovered back as money had and received. This principle was re affirmed by their Lordships of the Privy Council in the case of Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery 10 M.I.A. 203 : 3 W.R.P.C. 11 : 2 P.C.J. 103 : 19 E.R. 948 and it was distinctly laid down as a principle of law that in this country as well as in England, money recovered under a decree or judgment cannot be recovered back in a fresh suit so long as the decree or judgment under which it was recovered, remained in force. The decree or judgment must be taken as subsisting until it has been reversed or superseded by some ulterior proceeding. The Full Bench case referred to above, Kalichurn Dutt v. Jogesh Chunder Dutt 2 C.L.R. 354, does not depart from the aforesaid principle and affirms it inasmuch as it is held that in that particular case the effect of the Privy Council decree was to modify and set aside the subsequent decrees obtained on the basis of the first decree. All the authorities appear to have been considered in the recent case of Dwarka Nath Kundu v. Mohendra Nath Roy 16 Ind. Cas. 131 : 16 C.L.J. 437 and the true test as deduced from all the authorities, appears to be whether the decree or judgment under which money was recovered, has been reversed or superseded. In the present case the decree sought to be set aside by the plaintiff, remains intact and cannot be set aside on account of the suit of the plaintiff, having been barred by limitation. Whatever be the view of the Munsif or of this Court as to the claim of the defendant against the present plaintiff in the former rent suit being in excess of the real rent, it cannot be said that the rent decree obtained against the plaintiff has been vacated which must be a condition precedent for a refund of the money recovered under that decree, There is no ulterior proceeding as in the cases noticed above where the decree in execution of which the plaintiff was obliged to pay a higher sum than what was due from him on account of rent, has, in any way, been modified or set aside. The relief sought by the plaintiff, therefore, on the basis of the money had and received on account of rent, cannot be granted to him. The result is that the plaintiff''s contention is overruled and the appeal is dismissed with costs throughout. In the circumstances of the case I do not allow costs to the plaintiff for the second hearing after remand.