JUDGMENT

Sen, J. - This is an appeal by the defendant in a suit for recovery of Rs. 1,785.

2. The defendant is the maternal uncle of the plaintiff. There appears to have been some litigation between the plaintiff and his brothers which was referred to the arbitration of the defendant. The latter gave an award under which Rs. 787-8 where payable by the plaintiff to his brothers. The plaintiff was indebted to one Moti Chaube under a hundi and the principal amount payable was about Rs. 200. The plaintiff sent Rs. 987-8 to the defendant by several instalments with the direction that the defendant was to pay Rs. 787-8 to his brothers and Rs. 200 to Moti Chaube. There is a concurrent finding of the two Courts that the aforesaid amount was sent by the plaintiff to the defendant and the object of sending this amount was that the defendant should liquidate the liability of the plaintiff to his brothers and Moti Chaube. It transpired, however, that the defendant did not pay either the brothers or Moti Chaube. On the other hand, the defendant obtained an assignment of the hundi from Moti Chaube in his own favour and instituted a suit for recovery of the amount from the plaintiff. This was suit No. 748 of 1924. The defendant pleaded that the amount payable under the hundi had been sent to the defendant for payment to Moti Chaube and the claim by the plaintiff (present defendant) as assignee of the debt was not maintainable. There was no question directly or substantially in issue between the parties to that action as to whether the sum of money alleged by the plaintiff Bandan to have been sent to Jaganji for payment to Moti Chaube had been received by him. The judgment in that suit proceeded upon the ground that the debt of Moti Chaube under the hundi had not been paid up. The plaintiff sought to enforce the claim not in his individual capacity, but in his capacity as assignee of the debt from Moti Chaube. The liability which is sought to be enforced against the defendant in the present case arises from his breach in not carrying oat the undertaking to pay the sums of money which he had received from the plaintiff to the persons who should have been the legal and proper recipients of the same.

3. The Court of first instance decreed the suit. The lower appellate Court affirmed the decree, except as to the interest which the plaintiff had claimed to recover on the amount advanced.

4. It may be mentioned that the plaintiff's brothers had also instituted a suit against the plaintiff for recovery of Rs. 787-8 which was payable to them under the award which has already been adverted to. Tins claim was also decreed.

5. The present action was lodged on 13th February 1926. The defendant denied that he received the sums of money from the plaintiff. He also resisted the claim on the ground of res judicata and limitation. These pleas were repelled by the trial Court and a decree was passed in favour of the plaintiff for the entire amount The lower appellate Court has affirmed the decree of the trial Court with a small variation as regards interest. The defendant has appealed to this Court and the plaintiff has filed a cross-objection as regards interest.

6. Upon the facts which we have already set out above, the plea of res judicata is clearly unsustainable. The point which calls for determination in the present suit was not directly and substantially in issue in the former suit nor did the parties litigate under the same title.

7. We are clearly of opinion that the plaintiff's claim is not time barred It is immaterial for the purpose of this case whether Article 48 or Article 90 Lim Act is applicable. In similar eases, this Court has on no less than two occasions applied Article 48: (Rameshwar Chaube v. Mata Bhik [1883] 5 All 341 and Ram Lal v. Ghulam Husain 1907] 29 All579. In the last mentioned case, the learned Judges were in some doubt as to the applicability of Article 48, and we may state at once that we share the doubt It may be open to argument whe