JUDGMENT

1. These two appeals arise out of two suits brought by the Benares Bank, Limited, plaintiff-appellant, before the Munsif, Benares City, for recovery of certain sums of money. One of these suits was brought against (1) Ram Prasad, (2) Mahadeo Prasad and (3) Mahabali Prasad, the three defendants, on the allegations that defendant No. 3 had a savings bank account with the plaintiff's Bank, that there was a collusion between him and Bam Prasad the clerk in charge of the saving bank account and Mahadeo Prasad another employee of the Bank, and that though Mahabali Prasad had only Rs. 101-3-1 to his credit, not less then Rs. 800 were drawn, Rs. 200 on the 23rd February, 1924, by Mahadeo Prasad on the authority of a letter alleged to have been written by Mahabali Prasad, Rs. 200 on the 3rd January, 1924, Rs. 200 on the 25th of January, 1924, and Rs. 200 on the 13th of February, 1924, by Mahabali Prasad himself knowing that he had not enough money to his credit and that Ram Prasad the clerk in charge who was in complicity with the other two allowed the four sums to be drawn to the detriment of the plaintiff. Earn Prasad was convicted of offences under Sections 403 and 447-A of the Indian Penal Code on the 9th of July, 1924, by the Sessions Judge. Benares. The plaintiff claims Rs. 698-12-11 out of the Rs. 800 drawn in the manner already stated, being the amount overdrawn in the account of Mahabali Prasad.

2. Second Appeal No. 1174 has arisen out of this suit.

3. The other suit which has given rise to the connected Appeal No. 1175 of 1927 was brought against Ram Prasad, Harshaukar Lal and Mahabali Prasad on Bimilar allegations. It relates to a sum of Rs. 300 drawn by Mahabali Prasad on the authority of a letter alleged to have been written by Harshankar Lai another depositor in the savings bank account. Earn Prasad is alleged to have allowed the withdrawal of this sum with full knowledge that Harshankar Lal had no money to his credit in his account.

4. If the allegations contained in the plaints of the two suits briefly stated above, are true, Ram Prasad the clerk in charge of the savings bank accounts who has been since convicted of serious offences of forgery and falsification of accounts, was principally responsible for the fraudulent transactions to which the plaintiff's claims refer.

5. The only defence which, it is necessary to take notice of at this stage is one of limitation. Both these suits were brought within three years from the dates on which the sums claimed by the plaintiff-appellant were drawn. The defendants plead that the period of limitation for the suits brought by the plaintiff-appellant on the allegations contained in the plaints is two years. Both the lower Courts have held that Article 36 of Schedule I of the Indian Limitation Act, which provides a period of two years, is applicable to the circumstances of these cases. The plaintiff Bank has preferred these two appeals from the decrees of the lower Courts dismissing the two suits.

6. A reference to the terms of Article 36 will make it clear that it is a residuary Article providing a period of two years for suits "for compensation for any malfeasance, misfeasance, or nonfeasance independent of contract and not herein specially provided for." If, therefore, any other Article is appropriate to the circumstances of the case, Article 36 cannot apply. The learned District Judge has arrived at the conclusion that this is the proper Article to be applied. The Articles relied on by the plaintiff-appellant before him and before us are Articles 48, 95 and 90. The learned District Judge was of opinion that Articles 89 and 90 do not apply even as against Ram Prasad, the clerk in charge of the savings bank account, as, according to him, Ram Prasad was not the agent of the Bank. He has correctly defined the agent as one "who is authorised to act for his principal". But the learned Judge is of opinion that as his duties were confined to preparing vouchers, checking the balance