Article 62 of the Limitation Act applies only where, at the time of the receipt of the money by the defendant, it is received by him for the use of the plaintiff.

Raj Kishore Prasad, J.

1. The sole question, for determination on this application in revision, under Sec.25 of the Provincial Small Cause Courts Act, by the plaintiff, is, whether, here, Article 62, or Article 120, of the Limitation Act, 1908 , applies?

2. In order to decide the question of limitation it is necessary to know the material facts: The plaintiff took settlement of some land from the landlord on an annual rental of Rs. 78-12-0. The defendants, later on, purchased the entire interest of the landlord of the plaintiff. The defendants, therefore, filed a rent suit for recovery of rent of the land, which the plaintiff had taken settlement of, not against the plaintiff who was its tenant but against one Bishwanath Upadhya alias Sidhnath Upadhya, who had nothing to do with the rent claimed land.

The suit was decreed and the decree was executed by the defendants against the land of the plaintiff, although he was not a party to the decree under execution. The plaintiff, in order to save his property from sale, deposited the entire decretal amount to the extent of Rs. 290-2-0 in Court in favour of the defendants decree-holder, and, thereafter, instituted a title suit for setting aside the aforesaid decree. The plaintiffs suit was decreed on 31-8-56 and the rent decree, in execution of which the plaintiffs land was put up to sale, was set aside and the said judgment was upheld on appeal on 18-4-58.

3. In the executing Court, where the money had been deposited by the plaintiff in favour of the defendants, the plaintiff, On 6th November, 1954, filed a petition to withhold the payment to the defendants till the disposal of the title suit brought by him. To this application of the plaintiff the defendants filed a rejoinder on 13th November, 1954. After hearing both the parties the plaintiffs application for withholding the payment, was, however, rejected by the execution Court on 30th November, 1954. On 3rd December, 1954, the payment order, moved by the defendants for payment of the sum deposited by the plaintiff in their favour, was passed and, on 3rd December, 1954, the defendants withdrew the amount.

4. The plaintiff, thereafter, brought the suit for recovery of the money which was deposited by him in the executing Court for avoiding sale of his lands, which was alleged to have been wrongfully withdrawn by the defendants. The plaintiff alleged that the money deposited by him belonged to him, and, therefore, the defendants had no right to withdraw the sum, when the rent decree was obtained by them, not against the plaintiff, but against a person, who was not the tenant of the land, and the said rent decree had subsequently been set aside.

5. The suit has been dismissed by the learned Small Cause Court Judge on the ground that the money having been withdrawn by the defendant, on 3rd December, 1954, and, the present suit having been instituted on 9-6-59 it was barred by three years limitation. He has not, however, mentioned the particular Article of the Limitation Act, which, in his opinion, applied to the present case.

6. In order to decide whether, to the above facts of this case, Article 62, as contended by the defendants opposite party, or, Article 120, as contended by the plaintiff petitioner, applies, it is necessary, at first, to read Articles 62 and 120 of the Limitation Act. They are in these terms :

"62.For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs use.Three years.When the money is received.

"120.Suit for which no period of limita-tion is provided elsewhere in this schedule.Six years.When the right to sue accrues."

7. In support of his contention that, here, Article 120 would apply, Mr. Janeshwar Singh, who appeared for the petitioner, relied on two decisions of the Privy Council in O. Rm. O. M. Sp. Firm V/s. Nagappa Chettiar, AIR 1941 PC 1 and Gurudas Pyne V/s. Narain Sahu, ILR 10 Cal 860: 11 Ind App 59 (PC), and, also on a decision of Shib Chandra