The central legal point established in the judgment is the determination of the applicable limitation period for a suit for money had and received, based on the provisions of the Limitation Act.

Cornish, J.

1. The point for decision in this appeal is whether the plaintiff--appellants suit is governed by Article 62 of the Limitation Act, in which case it is time barred, or by Article 120, in which case the suit will be in time.

2. The appellant was auction-purchaser at a Court-sale of certain items of property sold by defendants 5 to 10 in execution of a decree obtained by them in a Rent suit against defendants 3 and 4. The date of the sale was 25th September, 1918, and it was confirmed on 11th December, 1918. The purchase price was Rs. 2,525 which was duly deposited in Court. In the meantime a stranger in these proceedings had brought a suit O.S. No. 723 of 1918, for recovery of possession, alleging that in as much as the judgment-debtors had already sold the lands to him they had no saleable interest in the land, and that there were irregularities in the sale to the appellant. This suit was decreed on 15th December, 1919, the Court holding that there were irregularities in the conduct of sale sufficient to set it aside. A prohibitory order had been obtained against the Deputy Collector that he should not part with the purchase-money deposited by the appellant. But this order expired on 20th November, 1918 and a payment of Rs. 1,200 odd was made to the defendants in July, 1919. In consequence of the decree setting aside his sale the appellant on 30th April, 1920, put in a petition to the Court of the Deputy Collector for a refund of the purchase-money. In reply he was informed on 1st November, 1920, that the money had been paid to the decree-holders towards the decretal amount. A further petition was made on 18th December, 1922, but this was rejected. As a matter of fact, only half of the purchase money had been paid away and the statement that all had been paid was a mistake of the Deputy Collector.

3. The appellant filed his suit on 6th July, 1925. The plaint does not say in so many words that the claim is for money payable by the defendants to the plaintiff for money received by the defendants for the plaintiffs use. But that is the substance of the claim set out in his pleadings. The basis of a suit for money had and received will be found described in Bullen and Leaks Precedents of Pleadings (8th Edition), p. 265 thus:

When a person receives money which injustice and equity belongs to another, as a rule a debt is created and the money can be recovered by an action for money received to the use of the plaintiff.

4. If the appellants suit is, as I have no doubt it is, one for money had and received, Article 62 of the Limitation Act governs it, as both the lower Courts have held, and the suit is time barred.

5. The learned Advocate for the appellant, however, takes his stand on certain rulings of this High Court and contends that Article 120 of the Limitation Act governs the suit. In Nilakanta v. Imamsahib I.L.R. (1892)Mad. 361 : 3 M.L.J. 134, where a Court-sale had been set aside on the ground that the judgment-debtor had no saleable interest in the property sold, it was held that Article 120 governed the plaintiffs suit to recover the purchase money from the decree-holder. The explanation of that decision is, I think, that the suit was one under Section 315 of the Code of Civil Procedure, 1882. The case was followed in Mohideen Ibrahim v. Mahomed Mura Levvai (1912)23MLJ487 . The head-note which appears to accurately express the gist of the judgment, says:

An auction-purchaser had a substantive right of suit under the Code of 1882, i.e., Section 315) for the refund of the price money paid by him when it was found that the judgment-debtor had no saleable interest; and Article 120 of the Limitation Act applied to such suits.

6. The Court therefore, held that a suit founded upon a substantive right to a refund of purchase money on the setting aside of a Court sale must be regarded as outside the category of a suit for money had and received. Certain observations of their Lordships of the Judicial Committee in Juscurn