1. This was a suit by a tenant to recover specific property alleged to have been wrongfully distrained by his landlord, the defendant. The plaint prayed for the recovery of the property, or of its price,
Rs. 100.
2. The defendant pleaded that the suit was barred by the special limitation prescribed u/s 78 of Rent Recovery Act (Madras) VIII of 1865, as the suit was brought more than six months after the
cause of action accrued. Section 78 enacts that ""nothing in this Act contained shall be construed to debar any person from proceeding in the ordinary tribunals to recover money paid, or to obtain
damages in respect of anything professedly done under the authority of this Act:
Provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the
cause of action arose.
3. The District Judge held that the distraint was not an act professedly done under the law, but in defiance of it, inasmuch as no patta had, in fact, been tendered as required by law and he referred to
Srinivasa v. Emperumanar ILR 2 Mad. 42 in support of his decision. He, therefore, held that the special limitation in Section 78 of Act VIII of 1865 did not apply, but that the case was governed by
Article 49,
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Artiicle 49:
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Description of suit. | Period of | Time from which period begins
| limitation. | to run.
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For other specific moveable pro- | Three years ... | When the property is wrongfully
perty, or for compensation for | | taken or injured, or when the detai-
wrongfully taking or injuring or | | ner''s possession becomes unlawful.]
wrongfully detaining the same. | |
___________________________________________________________________________________________________________________________________________________
schedule 2 of the Indian Limitation Act, and confirmed the decree of the District Munsif awarding the plaintiff Rs. 60 as the value of the property distrained.
4. The defendant appeals.
5. We are unable to agree with the District Judge that the appellant did not act professedly under the Rent Recovery Act, but in defiance of it. The case of Srinivasa v. Emperumanar ILR 2 Mad. 42
stands on a different footing from the present case. There the Sub-Collector, finding that the formalities required by the Act had not been observed, removed the attachment and directed the
restoration of the property. The cause of action was the refusal to restore the property after such order. That could not, in any view, be regarded as a thing even professedly done under the Act. It
was clearly a wrongful withholding of the property independently of any provisions of the Act. In the present case the distress professed to be made by the landlord under the provisions of the Act.
The fact that no patta had previously been tendered, though it may affect the legality of the distress, does not alter its character as a thing done professedly under the Act. We, therefore, disagree with
the ground on which the District Judge has based his decision. We, however, hold on other grounds that Section 78 is inapplicable.
6. The special limitation provided in that Section must be restricted to the classes of suits specified in the Section, viz., to suits (1) to recover money paid and (2) to obtain damages in respect of
anything professedly done under the Act. The present suit was for the recovery of specific moveable property, and therefore does not fall within the category u/s 78. We are satisfied that the suit was
not brought in this form in order to evade the limitation provided by Section 78. The suit was for a jewel and a brass pot, and there was no allegation on either side that the property had been sold
prior to the suit. The mere fact that there was an alternative prayer for the value of the property does not alter the essential character of the suit as one for recovery of specific moveable property.
7. As Section 78 is inapplicable, the limitation is that prescribed by Article 49, schedule 2 of the Indian Limitation Act, and the suit is not barred.
8. We, therefore, confirm the decrees of the Courts below and dismiss this second appeal with costs.
