P L D 1955 Dacca 118 (PLP)

GUHA, J.--‑This second appeal by the plaintiffs against the concurrent decision of the learned Subordinate judge, Second Court, Faridpur, raises some interesting questions, and arises iti a stilt brought by the mortgagors plaintiffs against the mortgagee defendant to get a refund of the money which they paid on account of interest in excess of the .mount allowed under section 30 of the Bengal Money Lenders Act, 1940. The case of the plaintiffs instituted on the 25th March, 1946 is on the following allegations: The plaintiffs Nos. 1 to 4 and the predecessor of the plaintiffs Nos, S to 9 raised a loan of Rs. 5,000 on a mortgage, dated the 21st September, 1933 from the defendant stipulating to pay interest at 12 per centum per annum. The plaintiffs had since paid off the principal Rs. 5,000 and interest Rs 2,

885. That in view of the provisions of the Bengal Monex Lenders Act, 1940, the defendant was entitled to interest at 8 per centum per annum only but contrary to the provisions of that Act, the defendant had realised Rs 934 2‑9 pies in excess on account of interest, which the latter was bound to refund to the plaintiffs. The plaintiffs requested the defendant to make an account of the money due on the mortgage and to refund any sum paid in excess but the defendant refuse to do so. According to the plaintiffs a sum of Rs. 199‑2‑9 pies was paid on the 3rd November, 1939, and a sum of Rs. 735 was paid on the 14th November, 1941, aggregating to a suin of Rs. 934‑2‑9 pies which represented the excess payment on account of interest. The plaintiffs prayed for refund of that sum with future interests on taking an account and also for a declaration that the defendant was not entitled to get any further sum from the plaintiffs on account of that ‑mortgage loan. This suit was filed with ad valorem Court‑tees on Rs. 934‑2‑9 pies though under the Bengal Money Lenders Act a much smaller amount was payable as Court‑fees. The main contentions of the defendant were that the plaintiffs were not entitled to get any refund of the amount claimed in the suit, and that the suit was barred by limitation. The learned Munsif held that the plaintiffs were entitled to a refund of the entire amount claimed in the suit as excess payment on account of interest but he dismissed the suit *on the ground of limitation: On appeal by the plaintiffs and on cross‑objection by the defendant the learned Subordinate Judge dismissed both the appeal and the cross‑objection, holding that as the suit was not brought according to the provisions of section 36 of the Bengal Money Lenders Act but filed merely as a suit for recovery of Rs. 934‑2‑9 pies by way of refund on account of excess payments, on the 25th March 1946, if was barred under Article 62 of the Limitation Act and Article 120 had no application. The propriety of the said decision is challenged in this appeal by the plaintiffs, and their learned Advocate argues firstly, that the present suit is one according to the provisions of section 36‑of the Bengal Money Lenders Act; and secondly, that as there is iio special provision as regards limitation in that Act, Article 120 of ‑the Limitation Act will apply and Article 62 can have no application here at all. On behalf, of the defendant respondent that argument is sought to be repelled on the grounds that the present suit is not in accor?dance with the provisions of section 36 of the Bengal Money Lenders Act and that the proper Article applicable is Article 62 of the Limitation Act ; and that the decisions of the Courts below are right. The learned Advocate for the respondent also argues that the present suit has been filed with ad valorem Court‑fees 'on the amount sought to be recovered and not with a lesser amount of Court‑fees, which is required under the Bengal Money Lenders Act and so this suit cannot be said to be one under that Act ; and therefore the suit being one for money, had and received, Article 62 of the Limitation Act is the proper Article to be applied. The first contention of Mr. Jnanbrata Roy, the learned Advocate for the plaintiffs is that the Courts below have gone wrong in holding that the suit is not one in accordance with the provisions of section 36 of the Bengal Money Lenders Act. The lower appellate Court has held that as the suit has been brought for recovery of a specified sum of money by way of refund from the defendant on account of excess payment made by the plaintiffs to the defendant towards the dues of the mortgage bond, it is a simple suit for money insti?tuted on payment of ad valorem Court‑fees. The learned Advocate for the respondent urges that in this respect the Court of appeal below has acted in accordance with law and that decision is correct. In order to determine the nature and scope of the suit we need consider the material portions of section 36 of the Bengal Money Lenders Act, 1940, which run as follows : . "36. (1) Notwithstanding anything contained in any law for the time being in force, 'if in any suit to which this Act applies, or in any suit brought by a borrower for relief under this section whether heard ex‑parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section shall give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, namely, shall (a) re‑open any transaction and take an account between the parties . . . . . ; (c) release the borrower of all liability in excess of the limits specified in clauses (1) and (2) of section 30 ; (d) if anything has been paid or allowed in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c), order the lender to repay any sum which, the Court considers to be repayable in respect of such payment or allowance in account as afore?said .... ; (4) this section shall apply to any suit, whatever its forms may be, if such suit is substantially one for recovery of a loan or for tlw enforcement of any agreement or security in respect of a loan or for the redemption or any such security . . . . ." Section 30 of the Act provides that for a secured loan interest at 8 per centum simple per annum is allowed. It appears from the language of section 36 that a borrower has the right to bring a suit under section 36 (1) for relief under that section whatever its form may be and this right extends to the borrower whether a decree has been passed against him or not, and it is not limited to the case where no decree has been passed on the loan at the instance of the lender. This principle is now well‑settled. See Satya Narayan Banerjee v. Radha Nath Das ((1941) 45 C W N 1085) where it has ruled that a suit lies even where a decree for loan has been passed or not: Balai Chandra De v. Akshaya Kumar Seal ((1944) 48 C W N 596) where it has been laid down while interpreting clause (c) of section 36 (1) that "to hold where a liability had been satisfied, that fact alone would be sufficient to bar relief under the Act would be to render its provisions nugatory". Sashi Kumar Banerjee v. Mrs. D. e1 Hill ((1945) 50 C W N 375) where a suit has been filed (as in the present case) after the mortgage loan has been fully satisfied and it has been held that "borrower" is a descriptive word and if relationship of lender and borrower subsists on the 1st January, 1939, the fact that at the date of the suit under section 36 (1) the loan had already been, satisfied by payment would not make the suit non‑maintainable and where interest in excess of the sum specified in section 30 has been paid, relief may be granted under clauses (c) and (d) of that section without re‑opening any transaction ; and Sarvamangala Dassi v. Paritosh Kumar Das ((1951) 88 C L J 183) where a suit has been filed after delivery of possession had been taken in execution of a final decree in a mortgage suit and it was held that the suit under section 36 (1) was maintainable. Therefore, the present suit, if it may be deemed to be a suit in accordance with the provisions of section 36'(1) of the Bengal Money Lenders Act, will be maintainable as it appears from the language of the section and the principles laid down in the aforesaid decisions. In this case the learned Subordinate judge observes that the plaintiffs have not instituted the suit according to the provisions of section 36(1) of the Bengal Money Lenders Act but that the suit is a simple suit for recovery of a specified sum of money by way of refund from the defendant. The learned Advocate for the respondent also persistently argues that this is a suit for refund of money and not one under the Bengal Money Lenders Act. In order to decide this question we shall have to consider the plaint in the suit. The plaint clearly recites that the plaintiffs have paid the principal Rs. 5,000 and Rs. 2,885 on account of interest. But in view of the provisions of the Bengal Money Lenders Act, the defendant was entitled to interest at 8 per centum per annum but he had realised from the plaintiffs a sum of Rs. 934‑2‑9 espies, which represented the excess amount of interest and the defendant was not entitled to that amount and he was bound to refund it to the plaintiffs; but the defendant refused to refund and it was prayed that on taking account, the said sum might be repaid to them with interest. It is true that in the plaint it is not mentioned that the suit is under section 36(1) of the Bengal Money Lenders Act, and it is, also true that in. the suit ad valorem Court fees on Rs. 934‑2‑9 pies have been paid, and that the plaintiffs would have got the reliefs prayed for on payment of a lesser amount of Court‑fees. We find in section 36 (4) that section'36 (1) shall apply to any suit, whatever its form may be, if such suit is substantially one of the several kinds mentioned in that section. In my opinion what is necessary to be seen is whether the suit is in substance a suit under the Bengal Money Lenders Act. Reading the plaint as a whole and the prayers therein, it cannot but be said that the suit is in accordance with the provisions of section 36 (1) of the Bengal Money Lenders Act. In construing the plaint we shall have to look to the substance and not to the form ; and I have already shown that it is what has been intended by the legislature. This is also true under the general law. See the observations of Woodroffe, J. in Tribeni Sahu v. Bhagwat Bux ((1907) I L R 34 Cal. 1037 (1051) (F B)) per Madharan Nair, J. in the Municipal Council, Dindigul v. The Bombay Company Ltd., ((1928) I L R 52 Mad. 207 (225).) and my own observations in Ashutosh Roy v. Arun Sankar Das Gupta ((1950) 55 C W N (3 D R) 54 (59)). We have already seen that a borrower can claim relief under the Bengal Money Lenders Act by a suit under section 36 (1) even where a decree for loan has been passed or not, and even where a loan has been satisfied by payment or otherwise. We find that under section 36(1), the Court can exercise certain powers, which are enumerated in clauses (a) to (e) of section 36 (1) ; and under clause (c), the Court can release the borrower of all liability in excess of the limit specified in clauses (1) and (2) of section 30, which amongst others provides that after the commencement of the Act no borrower shall be liable to pay interest at a rate exceeding eight per centum simple per annum as regards secured loan ; and under clause (d) if anything has been paid or allowed in account on or after the first day of January, 1939 in respect of the liability referred to in clause (e), the Court shall order the lender to repay any sum which it considers to be repayable in respect of such payment. Here in this case the plaintiffs after setting out the relevant facts pray that on taking account the sums paid on the 3rd November, 1939 and on the 14th November, 1941, which represented excess payment on account of interest, may be refunded. From what has been said above, it follows that the present suit is one under section 36 (1) of the Bengal Money Lenders Act. Apart from all that justice should not be sacrificed for mere technicality but substantial justice should be done. See the observations of Viscount Haldane in Kojo Pon v. Atta Fua (A I R (1927) P C 264) and the observations of Lord Penzance in Kendal v. Hamilton ((1879) L R 4 A C 504 (525)) : "Procedure is but the machinary of the law, after all the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct and even, extinguish, legal rights, and is thus made to govern where it ought to subserve". So considering the matter here in the light of the aforesaid principles and observations, I hold that the present is a. suit under section 36 (1) of the Bengal Money Lenders Act, and the plaintiffs are entitled to relief under that section. In that view, I accept the first contention of the appellants as sound and overrule the objection of the learned Advocate for the respondent. The question of limitation, which is the second contention of the appellants, has engaged much of the attention of the two Courts below, and the matter has been very elaborately argued in this Court. The learned Advocate for the appellants argues that Article 120 applies, while the learned Advocate for the respondent maintains that article 62 applies. The Courts below have held that Article 62 applies and as the suit has been filed beyond 3 years of the payments it was barred by limitation. Now section 36 (1) of the Bengal Money Lenders Act does not prescribe any period of limitation. In order to decide this question we are to recapitulate the facts here and to turn to the material provisions of Articles 62 and 120 of the Limitation Act. The material facts are that the plaintiffs are borrowers and they paid Rs. 199‑2‑9 pies on the 3rd November, 1939 and Rs. 735 on the 14th November, 1941 as interests in liquidation of their mortgage debt and those two sums were paid in excess of their liability under the Bengal Money Lenders Act, which came into force on the 1st September, 1940. It is an admitted fact that by the last payment on the 14th November, 1941, the mortgage debt was paid off in full in terms of the mortgage bond, which carried interest at 12 per centum per annum ; while the Act provides interest at 8 per centum per annum. It is an admitted fact now and it is also conceded by the learned Advocate for the respondent that the two sums of Rs. 199‑2‑9 and Rs. 735 aggregating to a sum of Rs. 934‑2‑9 pies represents the amount which has been paid in excess on account of interest. It is not also controverted that under section 36 (1) (d) of the Bengal Money Lenders Act, if anything has been paid in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c) of section 36 (1), the Court, if it so considers, shall order the lender to repay it. It can be stated here that this power can be exercised only if the Court has reason to believe that the exercise of all or any of the powers contained therein would give relief to the borrower. See Srimoti Padmakamini Debi v. T(aba Kumar Singh Dudhuria (53 C W N 18 (F B)). Again such power can be exercised by the appellate Court. See section 36 (ii) (b) of the Act and Kumar rlogendra Tf arain Singh v. Sourendra Narain Sinha ((1941) 45 C W N 774.) and Saradindu Mukherjee v. Jahar Lal Agarwalla ((1941) 46 C W N 33.). Now the present suit has been instituted on the 25th March, 1946, Articles 62 and 120 of the Limitation Act read as follows: Description of suit. Period of limitation. Time from which Period begins to run.

62. For money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's use. Three years. When the money is received.

120. Suit for which no period of limitation is provided elsewhere in this schedule. Six years. When the right to sue accrues. The learned Subordinate judge has held that as the suit is for recovery of a sum of money by way of refund from the defendant on account of excess payment made by them towards the interest of the mortgage bond, and as there is no relationship of mortgagor and mortgagee as the dues have been satisfied and as it is not a suit for account the proper Article applicable is Article 62 and not 120 of the Limitation Act. The learned Subordinate Judge has also held that in view of the frame of the suit it was a suit for money had and received by the defendant, and as it has been filed beyond three years of the payment, it was barred under Article 62 of the Limitation Act. The plaintiffs appellants' learned Advocate argues that it is a suit under the Bengal Money Lenders Act and Article 120 applies; while the learned Advocate for the respondent urges that the suit is governed by Article 62 of the First Schedule to the Limitation Act as it should be held that this was a suit for money payable by the defendant to the plaintiffs for money received by the defendant for the plaintiffs' use, and further that there having been no relationship of mortgagors and mortgagee, as the dues under the mortgage had been satisfied, so the suit could not be held to be one under the Money Lenders Act and, therefore, Article 120 would not apply here. The second branch of the contention of the learned Advocate for the respondent, I have already over?ruled. The first branch of the contention of the learned Advocate for the respondent is also without any substance, because apart from authorities, it is difficult to follow how it can be said that the defendant when receiving the two sums of money in dispute received that money for the plaintiff's use. The defendant, when he received the amounts, did so as his legitimate dues under the mortgage bond ; and so Article 62 cannot be applied. The real difficulty in construing the words of Article 62 of the Limitation Act seems to me that the Court of appeal below has apparently fallen into an error in considering some of the decided cases referred to in its judgment that Article 62 applies to all cases where an action for money had and received would lie in the Court of Common Law in England. The question I have to determine here is what is the period of limitation applicable to enforce the plaintiffs' claim. I may here point out in the words of Courts Trotter, C. J. in Addepalli Venkata Gurunadha Rama Seshayya v. Sri Tripurasundari Cotton Press, Bezwada (I L R 49 Mad. 468 (F B)). "The Indian Limitation Act is one of those unfortunate pieces of Indian Legislation which by trying to provide for everything con?ceivable very often ends by leaving out cases of the most glaring description. I might take this as a very good instance, for there is no Article which provides simpliciter for a debt due, such a debt as would have been the subject of the old Common Law action in debt, although oddly enough, pro?vision is made by Article 63 for money payable for interest upon money due from the defendant to the plaintiff ; so that a special Article is enacted for the interest and nothing is said whatever about the principal debt". It is urged by the learned Advocate for the respondent that Article 62 applies here. It is clear that an action such as the present one is in the nature of an action under the English Common Law for money had and received. In this connection I have been taken through a long catena of authorities, which have been decided on the basis of decisions in the English Common Law Courts. Under the Common Law of England, an action for money had and received is an action in personam and is maintainable only on contract or on tort. Where, therefore, an action was not based on tort and the plaintiff was unable to establish any contract by evidence, it was found necessary to have recourse to a fiction of a promise to pay "implied in law" in order to give relief to the plaintiff and to meet the justice of the case. What is the real nature of such an action in the English Common Law Courts has been laid down in the well‑known case of Sinclair v. Brougham and others ((1914) A C 398). The history of this form of action and the reasons which led to its extension are to be found in the speeches of Lord Haldane, Lord Chancellor, at pages 414‑421 and of Lord Sumner at pages 454‑

456. In that' case a suggestion was made that it was erroneous to suppose that the cause of action was really in assumpsit, which would rest upon an implied contract to return the money to the person to whom it was proved properly to belong, but that Lord Mansfield in Moses v. Macferlan ((1760) 2 Burr. 1005) had rested it on an equitable doctrine independent of assumpsit which made the return of the money obligatory ex aequo et bono. That doctrine was demolished by Lord Sumner, and it may be regarded as definitely established that in the English Common Law Courts, the cause of action is exclusively founded on an assumpsit or its modern equivalent. The question I have to consider here is whether the Courts in this country are compelled to regard a suit of the nature that arises in the present case as confined within the limits of a suit for money had and received as known to the English Common Law. Lord Sumner has pointed out that the case of Sinclair v. Brougham (ante) was said to be a "liberal" action in that it was attended by a minimum of formality, and was elastic and readily capable of being adapted to new circum?stances. There does not appear to be any sufficient reason why this artificial form of action should be imported in this country in order to decide whether a suit would come under Article 62 of the Limitation Act. In this country law and equity are administered by the same Courts, which are untramelled by any technical rules as to the form of an action in giving relief to the plaintiff, where the defendant has received money which according to the justice of the case he ought to refund. I find the highest authority for taking this view, the authority of the Privy Council in the case of John and others v. Dotvell and Company Limited ((1918) A C 563), where Viscount Haldane referring to Ceylon observes at pages 571‑572 : "For under principle which have always obtained in Ceylon, law and equity have been administered by the same Courts as aspects of a single system, and it could never have been difficult to treat an action analogous to that for money had and received as maintainable in all cases 'where the defendant has received money which ex aepuo et bono he ought to refund'." If, as in Ceylon, there is no necessity to find an actual contract or to impute the fiction of a contract, inasmuch as every Court can treat the question as one not merely of contract, but of trust fund where necessary, there is no difficulty in extending the remedy to all the cases covered by the words just quoted. I take that as being equally applicable to the Courts of Pakistan and India ; and I take that to mean this that in Courts such as those in Ceylon and those of Pakistan and India, an action for money had and received, may be treated, though the English Common Law Court cannot treat it, as an action founded on an equity binding on the conscience of the recipient of the money, which is shown not'to be his. If that be so, it follows that the remedy being an equitable one is enforceable because it is binding as ex‑aequo et bono on the conscience of the defendant, and cannot possibly be a suit of the description as appears in the present case or to a suit for damages or compensation or the like. I consider it broadly as pointing to this, that Viscount Haldane considers that for Ceylon and, therefore, for Pakistan and India, where there has never been any divergence between equitable and legal remedies, it is permissible to apply the suggestion of Lord Mansfield, whether it offends against the common Law of England or not, to such actions when brought in Pakistan and India. In my view, therefore, the plain meaning of the words in Article 62 of the Limitation Act should be given effect to without having recourse to any technical rules of English Law regarding forms of action. In this view of the matter, the plaintiffs' suit for recovery of the payments made beyond the period of 3 years is unaffected by the provisions of Article

62. The plaintiffs in this case are equitably entitled to the money which the defendant received honestly believing that he was entitled to receive as his dues under the mortgage bond. In an old case, Gooroo Das pyne v. Ram Narayan Sahoo ((1884) L R 111 A 59 (65) P C) Sir Barnes Peacock observes : "The suit is to enforce an equitable claim on the part of the plaintiffs to follow the proceeds of their timber, and, finding them in the hands of the defendant; to make him responsible for the amount. That does not fall either within Articles No. 60 (Articles 62 of the Act of 1908) or No. 48 (Article 49) ; but comes within Article 118 (Article 120) as a suit for which no period of limitation is provided elsewhere in this Schedule, and for suits of that nature a period of six years is the limitation". I shall pre?sently show that these observations apply in this case, and it falls, within Article

120. I have already observed that section 36 (1) of the Bengal Money Lenders Act does not prescribe any period of limitation. We have, therefore, to refer to the material provision of the Limitation Act, which is Article 120 of the first schedule ; and I have already set out the material provisions. The period prescribed by Article 120 is six years from the date when the right to sue accrues. The right to sue for relief under section 36 (1) of the Bengal Money Lenders Act could not accrue to the borrowers, here the plaintiffs, before the Act came into force. This is a right which is conferred by the Act and a party cannot claim the right prior to the date which is at a time when the right was non‑existent or did not accrue. The Bengal Money Lenders Act came into force on the 1st September, 1940. That gave the plaintiffs the right to be released of all liability in excess of the limits to be specified in clauses (1) and (2) of section 30 (Section 36 (1) (c) ) and if anything has been paid or allowed in account on or after the first day of January, 1939 in respect of the liability referred to in clause (c) and the Court, if it so considers that such payment or allowance in account as aforesaid to be repayable, it shall order the lender to repay the same (section 36 (1) (d) ). The present suit has, been started on the 25th March, 1946 which is beyond 6 years from the date of the first payment of Rs. 199‑2‑9 pies on the 3rd November, 1939 and within 6 years from the date of the second payment of Rs. 735 on the 14th November, 1941. It will be seen from section 36 (1) (d) of the Act that the plaintiffs are entitled to repayment of any sum which as been paid on or after the first day of January, 1939. The arned Subordinate judge has held that time ran from the date of payment and according to him the first payment would be barred even if Article 120 applied. That is obviously erroneous because the right was not in existence at that time ; and it only accrued on the passing of the Act? and when it came into force on the 1st September, 1940. In my opinion the present suit is governed by Article 120 of the Limitation Act. Article 120 declares that limitation shall start to run when the right to sue accrues. There can be no cause of action until there is a party capable of suing and until there is a cause of action, there can be no question of the law of limitation coming into operation. See S. T(. K. R. Meyappa Chetty v. S. N. Subramanian Chetty ((1916) L R 43 1 A 113), Bolo v. Koklan and others ((1930) L R 57 1 A 325 (331)). Per Sir Binod Mitter : "There can be no 'right to sue' until there is an accrual of the right asperted in the suit" ; Chanchandra Pramanik v. Nahush Chandra Kundu ((1922) I L R 50 Cal. 49) and A. N. C. T. Subbiah Thevar and others v. N. R. Samirappa Muddliar and others (I L R (1938) Mad. 586 (596) (F B)). In this case I have already held that the suit is one under the Bengal Money Lenders Act and that Article 62 does not apply ; and the only Article of the Limitation Act that is applicable is Article

120. The time here runs from the date of the passing of the Money Lenders Act, that is, from the 1st September, 1940, and this suit has been filed on the 25th March, 1946, which is within six years of 'the accrual of the right to sue; and in view of the provisions in section 36(1)(d), the payment made on the 3rd November, 1939 is also attracted. The suit here is not one based on any contract express or implied, but one to enforce a liability created by Statute and so the suit is governed by Article 120, not being a right in personam. See Rajah of Vizianagram v. Dindi China Tahammana and others (I L R (1937) Mad. 498 (F B)) (a case under the Madras Local Boards Act), and Gorakpur Electric Supply Co., Ltd. v. R. E. Nariman and Co. (A I R (1948) All. 75) where the suit was for money paid during the pendency of the winding up petition or after the winding up order. In a case under the Bengal Money Lenders Act, where the suit has been brought by the borrower within 6 years of the passing of the Bengal Money Lenders Act on the 10th. August, 1946 but after the mortgagee decree‑holder took delivery of possession on the 20th June, 1940, the Calcutta High Court applied Article 120 of the Limitation Act. See Sarvamangal Dassi v. Paritosh Kumar Das and others. The view I have taken here as regards the applicability of Article 120 of the Limitation Act also finds support from the decisions in Gooroo Das Pyne v. Ram Narain Sahoo where the suit was to enforce an equitable claim to follow the proceeds of timber in the hands of the defendant ; in Anantaram Bhattacharjee v. Hem Chandra Kar ((1923) I L R 50 Cal. 475) where suit was brought by the owners against the defendant who withdrew a portion of the proceeds of property attached under section 146 of the Code of Criminal Procedure alleging that it represented his share of profits ; in Kanji Valji v. Kalidas Thakursay ((1938) 69 C L J 108) where the plaintiff: was found entitled to money which the defendant wrongfully withdrew from the executing Court ; in Annamalai Chettiar and others v. A. M. K. C. T. Muthakaruppan Chettiar and others ((1930) L R 58 I A 1) where it was held that Article 62 did not apply to an equitable claim against a trustee to account but Article 120 applies and the right does not accrue so as to cause time to run until there has been an infringement, or at least an unequivocal threat to infringe the right‑asserted in the suit ; in Sardari hidya Wants Kaur and another v. Sardar Shahadev Singh (A I R 1938 Lah. 138) where the widow of a deceased copaccenor sued one of the surviving coparcenors for rendition of accounts, Article 120 was applied; in Addepalli henkata Gurunadha Rama Deshayya v. Sri Sree Tripurasundari Cotton Press, Bezwada where a shareholder of a limited company sued for recovery of arrears of dividend, and in Karanamurthi Thevar v. Ramanatha Thevar (I L R 1946 Mad. 306 (F B)) where the suit was by the real owner for money which a benamdar received as sale price of the property. Therefore, considering the matter in all its aspects, I am of opinion that the decision of the learned Subordinate Judge on the question of limitation is erroneous, and I overrule the, contention of the learned Advocate for the respondent; and hold that the suit is governed by Article 120 of the Limitation Act, and plaintiffs' claim is maintainable. The result, therefore, is that this appeal is allowed and that the judgments and decrees of the Courts below are set aside and the plaintiffs' suit is decreed in full for Rs. 934‑2‑9 pies with interest at 6 per cent. per annum till realisation. As regards costs, I direct that the plaintiffs shall get their costs in all the Courts up to this stage except that the plaintiffs shall not be entitled to the Court‑fees, which they paid in the trial Court on their plaint. Leave under clause 15 of the Letters Patent asked for is refused. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.