- (1.) This is a plaintiff's appeal. The plaintiff, the Gorakhpur Electric Supply Co., Ltd., Gorakhpur, through the Official Liquidator, filed a suit in the Court of the Munsif of Gorakhpur, for realisation of Rs. 2,860-10-0. The defendants were a firm of general merchants, who had supplied to the company before the winding-up certain lubricants and the price of the lubricants supplied was due to them. They filed a suit. No. 361 of 1932, for recovery of this amount. That suit was decreed by the learned Temporary Civil Judge of Gorakhpur. The defendants, who were the decree-holders, applied for execution of the decree and they realised the amount due to them under that decree between the dates February 18, 1935, and Augusts 5, 1935, by attachment of the bills for electric current consumed by certain third parties, which amount was payable by them to the plaintiff company.
(2.) Before the dates of these realisations, however, an application for winding-up of the company was filed in this Court on August 31, 1934. The winding-up order was made on September 2, 1936. In the year 1939, on August 3, the Official Liquidator applied to the learned Company Judge for an order under Section 227 for the refund of this amount, which they alleged the defendants had wrongfully realised from the company during the pendency of the winding-up petition in this Court. The defendants also filed an application before the learned Company Judge under the same section for an order validating these payments to them. The learned Company Judge, by an order dated August 19, 1940, dismissed both these applications and held that the Official Liquidator, if he had any right, should file a suit, but he was not prepared to validate these payments as requested by the defendants. The suit was filed on August 24, 1940. The defendants urged that the suit was barred by limitation.
(3.) Both the Courts below have held that Article 49 of the Indian Limitation Act was the article applicable and, while the trial Court held that limitation started to run from April, 1936, when provisional liquidators were appointed by this Court, the lower Appellate Court has held that the view of the trial Court that limitation began to run from April, 1936, was erroneous, and that limitation started against the plaintiff company on the dates when the invalid payments were made to the defendants, that is, according to the lower Appellate Court, the cause of action arose on various dates between February 18, 1935, and August 5, 1935. The lower Appellate Court further considered the question of giving the liquidator the benefit of the period during which his application under Section 227 was pending before the learned Company Judge and came to the conclusion that even if that period were excluded under Section 14 of the Limitation Act, the suit would still remain time barred. It is against that order that the plaintiff has come up in appeal to this Court. Learned counsel for the plaintiff appellant has urged that Article 49 of the Limitation Act does not apply to this case and the proper article applicable is Article 112. Learned counsel for the defendants, on the other hand, has relied on Article 49 and in the alternative, on Article 62. Article 49 of the Limitation Act reads as follows:- "For other specific movable property (the word 'other' has been used because certain specific movable properties have been mentioned in Article 48). or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Three years. When the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful.";