Payment under protest is an essential ingredient for the application of Article 16 of the Limitation Act, 1908.

S. P. MOHAPATRA, J.

( 1 ) THIS is an appeal against the decision of Sri B. Panda, Additional District Judge of Ganjam Nayagarh, dated 27-8-1954, reversing a decision of Sri M. N. Mukherji, additional Subordinate Judge of Puri, arising out of a suit for recovery of a sum of rs. 2668787-with a reasonable rate of interest on the said amount as against the state of Orissa. The plaintiff was a forest contractor under the Ex-Ruler of the Ex-State of Khandapara and he was authorised to exploit timbers in accordance with the terms of an agreement (Ext. A) entered into between him and the Ex-Ruler of khandapara. After the merger of the Khandapara State with the State of Orissa there started a proceeding against the present plaintiff for having illegally cut 57 Sal trees; the administrator by his order dated 19-2-1948 in the Forest Case No. 160 of 1947-48 ordered the present plaintiff to pay a sum of Rs. 3043/8/- as royalty and compensation for the alleged unauthorised act. The plaintiff paid a sum of Rs. 400 in cash and the balance of the amount was collected from the security money deposited by the plaintiff in connection with his agreement Ext. A. Thereafter the plaintiff filed an appeal against the said order of the Administrator of 15-5-1948. The appeal terminated in favour of the plaintiff. The appellate authority passed order for refund of Rs. 2668-8- collected from the plaintiff. The plaintiff thereafter made several demands for refund of the said sum of Rs. 2668787- but the State of Orissa having failed to comply with the order of refund passed by the appellate authority on 17-9-1948, the present suit has been brought for the recovery of the said sum on 17-9-1951.

( 2 ) THE State of Orissa had taken up various objections contesting the claim of the plaintiff, such as, there was no proper and valid service of notice under Section 80, civil Procedure Code, the order of refund is without jurisdiction and that the suit is barred by limitation.

( 3 ) THE learned trial Court negatived all the contentions raised on behalf of the state of Orissa and allowed a decree in favour of the plaintiff. The lower appellate court, however, even though agreeing with the findings of the trial Court in all other respect, dismissed the plaintiff's suit on the ground of limitation only. According to the lower appellate Court, the case comes directly under the mischief of Article 16 of the Limitation Act.

( 4 ) THE only point that was argued before me is whether the suit is barred by limitation or not. Mr. S. Acharya, the learned Standing Counsel, appearing on behalf of the State, did not contest the position that the order of refund passed by the appellate authority dated 17-9-1948 is a competent order passed by the appropriate authority who had jurisdiction to pass order. The findings of the courts below, therefore, remain unchallenged and accordingly are confirmed.

( 5 ) THE only point to be examined by me is whether the suit is hit by the mischief of Article 16 of the Limitation Act. It runs as follows:

"16. Against One When the government to year payment recover money paid is made. under protest in satisfaction of a claim made by the revenue authorities on account of arrears of revenue or on account of demands reco-verable as such arrears, there is no doubt over the position that before we can apply a particular Article of the Limitation Act to throw out a suit as barred by limitation, we shall have carefully to examine whether the materials on record are sufficient to comply with all the requirements provided for in the Article itself. The first ingredient, which is essential to bring the case under Article 16 is that "the money must have been paid under protest. " in my opinion, in the circumstances transpiring, in the case, out of the materials placed on record, there is nothing to suggest that "the money was paid under protest". Paragraph 3 of the plaint runs as follows: "that before the plaintiff filed the said appeal a sum of Rs. 3043/8