TMI Blog1946 (8) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the price of the lubricants supplied was due to them. They filed a suit, No. 361 of 1932, for recovery of this amount. That suit was decreed by the learned Temporary Civil Judge of Gorakhpur. The defendants, who were the decree-holders, applied for execution of the decree and they realised the amount due to them under that decree between the dates February 18, 1935, and Augusts, 1935, by attachment of the bills for electric current consumed by certain third parties, which amount was payable by them to the plaintiff company. Before the dates of these realisations, however, an application for winding-up of the company was filed in this Court on August 31, 1934. The winding-up order was made on September 2, 1936. In the year 1939, on Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of the period during which his application under section 227 was pending before the learned Company Judge and came to the conclusion that even if that period were excluded under section 14 of the Limitation Act, the suit would still remain time barred. It is against that order that the plaintiff has come up in appeal to this Court. Learned counsel for the plaintiff appellant has urged that Article 49 of the Limitation Act does not apply to this case and the proper article applicable is Article 112. Learned counsel for the defendants, on the other hand, has relied on Article 49 and in the alternative, on Article 62. Article 49 of the Limitation Act reads as follows: "For other specific movable property (the word 'other' has been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff, but the defendant had not delivered that amount and had kept the money with himself, a Bench of this Court (Oldfield and Brodhurst, JJ.) held that Article 48 of the Limitation Act was applicable. We would like to point out, however, that the point that has been argued before us in this case was not urged before the Bench as the defendant was not represented. With great respect to the learned Judges, we find it difficult to follow that decision, but we would have had no hesitation in holding that we were not bound by it as the point was not considered by this Bench, if the point had not arisen in later cases in which it was held that this decision was binding. In Ram Lal v. Ghulam Hussain [1907] 29 All 579 , another Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money is not a suit for specific movable property and Article 49 of the Limitation Act was not applicable. It is not necessary for us to discuss those authorities since we have taken the view that even if Article 49 is applied, the suit is within time. Article 62 of the Limitation Act is clearly not applicable. Article 62 provides for a case where money payable to the plaintiff is paid to the defendant and is recoverable on that account. It contemplates cases of payment to servants and agents. So far as we can see, the only article applicable to a case of this kind is Article 120 of the Limitation Act as there is no other article which can specifically apply. As we have already said, even if we were to accept the contention of learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by this Court. It was after the winding-up order that under section 168 of the Indian Companies Act, the proceedings could be deemed to have commenced from the date of the application. The cause of action for a suit for refund would, therefore, not arise till September 2,1936. The present suit was filed on August 24, 1940. If the period between August 3 1939 and August 19, 1940, when the liquidators were prosecuting in good faith certain proceedings before the learned Company Judge for an order for refund of this amount is excluded, the suit was clearly filed within a period of three years. The suit could not, therefore, be barred by limitation. In another very similar case that came before a learned Single Judge of this Court, Saiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants. The lower Court distinguished this case on the ground that the payments made were voluntary payments and, in that case, there was no application for execution while, in the case before us, the money was paid in the execution proceedings. The lower Court did not have the judgment in Hotilal's case of the trial Court before it, but from that judgment it is clear that in that case also the decree was put in execution and the amount was paid to the executing Court or was realised by the executing Court from the assets of the company. On the facts, therefore, the two cases were not in any respect distinguishable. As we have already held that even taking the date of the winding-up order to be the date on which the cause of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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