The fundamental basis of the claim for relief was the existence of a mistake, leading to the application of Article 96 of the Limitation Act.

King, J.

1. The appellant in this appeal obtained a decree in 1921 and in execution of the decree brought certain property to sale. The property was purchased by the predecessor-in-title of the present plaintiffs and the purchase money was duly paid over to the decree-holder on 12th March 1925. Before the sale of the property had taken place, there had been a claim petition put in by a mortgagee and that petition had been dismissed. The mortgagee subsequently filed a suit to set aside the order on the claim petition and to that suit the auction purchaser was made a party. The suit was decreed on 4th December 1926 on the ground that the judgment-debtor had no interest in the property and this finding is of course res judicata as against the auction purchaser and his representatives. On 12th June 1928 the legal representatives of the auction purchaser filed the suit from which the present appeal arises to recover from the decree-holder the money which they had paid for the property purchased. It was contended on behalf of the decree-holder that this suit was barred by limitation but both the Courts below have held that the suit was within time and they decreed the plaintiffs claim. This is now a second appeal by the decree-holder against that method of disposing of the suit.

2. The only question which arises is one of limitation. It is argued on behalf of the appellant that this is a suit which falls under Article 62, Limitation Act. It is argued on the other hand for the respondents that the proper article applicable to the suit is Article 96. There is one authority directly in favour of the appellant with regard to the application of Article 62 and that is a decision of Cornish J. sitting singly reported in Sivaramaraju v. Secretary of State A.I.R. 1935 Mad. 354. The facts in that case are undoubtedly similar to the facts here; but that was a case in which no argument "was put forward with regard to the possibility of applying Article 96. And indeed on an examination of the facts and dates it will appear that no such arguments could possibly have been successfully put forward on behalf of the party concerned. It is clear that the plaintiff in that case knew on 12th December 1919 that he had paid the money under a mistake, if mistake there was, and that he did not file his suit until July 1925. There was therefore no point in his arguing that Article 96 rather than Article 62 applied to the case as under either of these articles his suit would be undoubtedly barred. Although therefore Cornish J. does say that Article 62 applies to the facts before him, he has said so without considering the possible alternative that the suit with which he was dealing might also fall under Article 96. And, as has been pointed out in Ramiah & Co. v. Sadasiva Mudaliar & Bros A.I.R. 1925 Mad. 1255 if the facts of a particular case fall within both Article 62 and Article 96, Article 96 must be applied as it is the more specific and the less general of the two articles. Learned Counsel for the appellant has also relied upon other rulings of this Court in Baijnath Lala v. Ramadoss A.I.R. 1915 Mad. 405, Municikpal Council, dindigul v. Bombay Co. Ltd. A.I.R. (1929) Mad. 409 and a decision of mine sitting singly in Shanmugham Chettiar v.Official Receiver of West Tanjore A.I.R. 1938 Mad. 532. It will be seen upon an analysis of the facts of these cases that in Baijnath Lala v. Ramadoss A.I.R. 1915 Mad. 405 and Sivaramaraju v. Secretary of State A.I.R. 1935 Mad. 354 it would have been impossible for the plaintiff to have put forward any case based upon a mistake made by himself. In both these cases the plaintiff was throughout asserting the same title under the same knowledge of his rights. In Shanmugham Chettiar v.Official Receiver of West Tanjore A.I.R. 1938 Mad. 532 it might plausibly be asserted that the claim of the Official Receiver in that case could be based upon a mistake under which the Court had been labouring in making certain payments. B