Judgment

SAIKIA, J.:- This plaintiffs appeal by special leave is from the appellate judgment of the Madhya Pradesh High Court dismissing the appeal upholding the judgment of the trial Court dismissing the plaintiffs suit on the ground of limitaiton.

2. A registered firm Rai Saheb Nandkishore Rai Saheb Jugalkishore (Appellants) was allotted contracts for manufacture and sale of liquor for the calendar year 1959 and for the subsequent period from 1-1-1960 to 31-3-1961 for Rs.2,56,200.00 and Rs.4,71, 960.00, respectively, by the Government of Madhya Pradesh who also charged 71/2 percent over the auction money as mahua and fuel cess. As writ petitions challenging the Governments right to charge this 71/2 per cent were pending in the Madhya Pradesh High Court, the Government announced that it would continue to charge it and the question of stopping it was under consideration of the Government whose decision would be. binding on the contractors. The firm (appellants) thus paid for the above contracts a total extra sum of Rs. 54,606.00/-.

3. On 17-10-1961 the Under Secretary to Government, M. P., Forest Department, Bhopal wrote the following letter No.10 130X/ 61 (Exhibit D-23) to the Chief Conservator of Forests, Madhya Pradesh, Rewa :

"Subject: Levy of cess on liquor contractors. Under former M. P. Government (Forest Department) memo No. 4595-CR-73-XI dated 25th July, 1953, a royalty at 71/2 per cent of the license fee for liquor shops was imposed on liquor contractors to cover-the value of mahua & fuel extracted from the reserved or protected forests by the contractors for their still.

2. The M. P. High Court has since decided that the levy of the aforesaid cess is illegal and the cess cannot be recovered from the liquor contractors. In pursuance of this decision, Government desires that all processes whenever issued or proceedings instituted against liquor contractors for recovery of the mahua or fuel cess should forthwith be withdrawn and no revenue recovery certificates should be issued in respect of this cess.

3. Simultaneously no free supply of mahua or fuel should be permitted by virtue of the imposition mentioned above.

Immediate compliance is requested.

No.........X/61 Dt. Bhopal the 61

Copy forwarded for immediate compliance to :

1. Conservator of Forests, Bilaspur.

2. All Divisional Forest Officers, Bilaspur Circle.

3. Copy to C.F. Raipur Circle for similar auction in this cess levied in any division of his Circle."

4. On 24-4-1959 the Madhya Pradesh ,High Courts judgment in Surajdin v. State of M.P. declaring the collection of 71/2 per cent illegal was reported in AIR 1960 MPLJ 39: (AIR 1960 MadhPra 129). Even after this. decision Government continued to charge 7 1/2 per cent extra money. Again on 31-8-1961 the High Court of Madhya Pradesh in N. K. Doongaji v. Collector, Surguja decided that. the charging of 7V2 per cent by the Government above the auction money was illegal. This judgment was reported in 1962 MPLJ 130 : (AIR 1962 Madh. Pra 139). It is the appellants case that they came to know about this decision only in or about September, 1962. On 17-10-1964 they served a notice on Government of Madhya Pradesh under S. 80, of the Code of Civil Procedure requesting the refund of Rs. 54,606.00, failing which, a suit for recovery would be filed; and later they instituted Civil Suit No.1-B of 1964 in the Court of Additional District Judge, Jabalpur on 24-12-1964. The Government resisted the suit on, inter alia, ground of limitation. The trial Court taking the view that Articles 62 and 96 of the First Schedule to the Limitation Act, 1908 were applicable and the period of limitation began to run from the dates the payments were made to the Government, held the suit to be barred by limitation and dismissed it. In appeal, the High Court took the view that Article 113 read with S. 17, and not Article 24, of the Schedule to the Limitation Act, 1963, was applicable; and held that the limitation began to run from 17-10-1961 on which date th