An application for the release of distrained property under Section 61 of the Presidency Small Cause Courts Act, 1883, must be filed within five days from the date of seizure, as required under Order 21, Rule 47 of the Madras Rules.

ORDER :- This civil revision petition is directed against the order passed by the Registrar of the Court of Small Causes, Madras in M. P. No. 1491 of 1981 in Distress Application No. 136 of 1980, dismissing an application filed by the petitioner under Section 61, Presidency Small Cause Courts Act, 1883 (hereinafter referred to as the Act) for the, release of a Godrej typewriter distrained to the petitioner. The short facts are as under. The first respondent became a tenant with effect from 15-3-80 of one P.S. Jagadeesan, since deceased, whose legal representatives are respondents 2 to 6, in this civil revision petition. Since he did not pay the rent and owed nearly a sum of Rupees 11,000/- towards arrears of rent, the landlord initiated proceedings for the issue of a distress warrant under Section 53 of the Act for Rs. 4000, being the arrears of rent from 1-7-1980 to 31/10/1980. Among the goods distrained on 5-11-1980 was a Godrej typewriter On 26-2-1981 the petitioner filed M.P. No. 229 of 1981 under Section 60 of the Act praying for an order of release of the Godrej typewriter distrained to the petitioner and M.P. 300 of 1981, under Section 5 of the Limitation Act. praying for the condonation the delay in filing the petition for the lease of the typewriter. Subsequently, petitioner filed M.P. 409 of 1981 in M.P. 299 of 1981 on 17-3-1981, praying for an amendment of the claim petition opposed by the petitioner in M.P. 299 of 1981 as one under Section 61 of the Act, instead of Section 60. These applications were strongly opposed by the legal representatives of deceased P.S. Jagadeesan, under whom the first respondent be came a tenant, on the ground that the application is barred and that the petitioner cannot seek the release of the distrained typewriter and cannot also seek to amend the petition as one under S.61 of the Act. On 2-11-1981, the Registrar the Court of Small Causes, Madras, passed a common order in M. P. 409 of 1981 and M.Ps. 299 and 300 of 1981. Thereunder, the application filed by the petitioner for the release of the typewriter disrained was held to have been filed beyond the five days from the date of seizure of the property and, therefore, the application was barred by time, that no relief could be given to the petitioner under Section 5, Limitation Act, and further that the petitioner was not entitled to seek an amendment for amending the petition as one laid under Section 61 of the Act. In view of these conclusions the applications filed by the petitioner were dismissed.

2. It is thereafter, on 5-11-1981, the petitioner again filed M. P. 1491 of 1981 purporting to be one under Section 61 of the Act for an order of release of the Godrej Typewriter distrained. In the affidavit in support of that application, the petitioner stated that the typewriter in question was loaned by it to the first respondent for temporary use on an undertaking that it will be returned by 2-1-1981, and when asked to so return the typewriter, the first respondent informed the petitioner that the typewriter had been distrained in proceedings initiated by the deceased landlord P.S. Jagadeesan and was lying in the custody of the Court. Claiming that the typewriter belongs to the petitioner and that the first respondent had no right, title or interest therein and also stating that the attachment was invalid and illegal, the petitioner prayed for the release of the typewriter to the petitioner.

3. This application was opposed by the legal representatives of the deceased landlord on the ground that it is barred by res judicata and also by limitation in view of the prior proceedings and order in M. Ps. No. 299 and 300 of 1981. The loan of the typewriter stated to have been made by the petitioner to the first respondent for temporary use and return was disputed. The proceedings were also characterised to be the outcome of collusion between the petitioner and the first respondent with a view to cause wrongful loss and damage to others.