Judgement Chatterji, J. :- This is an appeal under cl. 10, Letters Patent, by the pltfs. in a suit which was originally instituted under O. 21, R. 63, Civil P. C. 2. Deft. 1, Volkart Brothers, a firm carrying on business in motor parts and accessories in Calcutta, obtained, in February 1940, a decree for Rs. 585-3-0 in the Small Cause Court at Calcutta against Ojha Das and Co., a firm carrying on business in motor accessories at Patna, of which the deft. 2, Sripat Ojha, is the proprietor. The decree was transferred for execution to the First Munsifs Court at Patna, and in execution Volkart Brothers took out attachment, on 14-1-1941, against certain motor accessories and other moveables said to belong to their J. Ds., Ojha Das and Co. On 16-1-1941, the pltfs., Ojha Brothers, a firm also carrying on business in motor accessories at Patna, of which the proprietors are the two younger brothers of deft. 2, Sripat Ojha, preferred a claim under O. 21, R. 58, Civil P. C. asserting that the goods sought to be attached belonged to them and not to the J. Ds., Ojha Das and Co. They prayed for stay of the exeoution proceeding whereupon they were ordered to furnish security. In obedience to this Order, they filed, on 20-3-1941, a registered security bond executed by one Raghubir Tewari. The claim was eventually dismissed on 5-9-1941. The execution then proceeded. 3. On 20-1-1942 the pltfs. brought the present suit under O. 21, R. 63, Civil P. C. for a declaration that the properties sought to be attached belonged to them and not to the J. Ds. Ojha Das and Co. 4. In August, 1942 the attached goods were sold and out of the sale proceeds, Rs. 70-10-0 was paid to deft, 1 Volkart Brothers, by way of rateable distribution. The surety, Raghubir Tewari, made three payments, two of Rs. 60 each and the other of Rs. 50 to Volkart Brothers and these payments were duly certified in Court. As he did not make any further payment, the property given by him in security was proceeded against and sold in June 1943. To set aside that sale, the pltfs. made an application under o. 21, R. 89, Civil P. C. on depositing Rs. 357-8-6. Thereupon the sale was set aside. Volkart Brothers also realised from the pltfs. a sum of Rs. To set aside that sale, the pltfs. made an application under o. 21, R. 89, Civil P. C. on depositing Rs. 357-8-6. Thereupon the sale was set aside. Volkart Brothers also realised from the pltfs. a sum of Rs. 85 as the costs of the claim case. 5. On 14-12-1943 the pltfs. by leave of the Court, amended the plaint by adding a further prayer for recovery of the said sums of money, that is, (1) Rs. 70-10-0, (2) Rs. 60, (3) Rs. 60, (4) Rs. 50, (5) Rs. 357-8-6 and (6) Rs. 85. 6. The suit was contested by deft. 1, Volkart Brothers, and their defence in substance was that the firms Ojha Das and Co. and Ojha Brothers were one and the same concern, belonging to the three brothers, and that the attached goods really belonged to the J. Ds., Ojha Das and Co. 7. The learned Additional Subordinate Judge, who tried the suit, held that the attached properties belonged to the J. Ds. Ojha Das and Co. and not to the pltfs. He accordingly dismissed the suit. On appeal, the learned Additional Dist. J. held that the attached goods belonged to the pltfs., Ojha Brothers, and not to Ojha Das and Co. and were, therefore, not liable to attachment or sale in execution, of the decree obtained by Volkart Brothers against. Ojha Das and Co. He accordingly allowed the appeal and decreed the suit in these terms : "Declaration sought for in the suit is allowed. Pltf. shall be further entitled to refund of the money actually realised from him by the D-H, (deft. 1) in Execution Case No. 1587/40". 8. On second appeal, Shearer J. held (1) that the claim for recovery of Rs. 70-10-0 was barred by limitation, (2) that the three payments, two of Rs. 60 each and the other of Rs. 50 being made by the surety Raghubir Tewari, the pltfs. were not entitled to recover those sums, (a) that the payment of Rs. 357-8-6 made by the pltfs. under O. 21, R. 89, Civil P. C. was voluntary and no suit could lie for recovery of that amount and (4) that the sum of Rs. 85 which the pltfs. had to pay as costs, was also not recoverable. He "accordingly allowed the appeal and dismissed the suit. 9. 357-8-6 made by the pltfs. under O. 21, R. 89, Civil P. C. was voluntary and no suit could lie for recovery of that amount and (4) that the sum of Rs. 85 which the pltfs. had to pay as costs, was also not recoverable. He "accordingly allowed the appeal and dismissed the suit. 9. Before coming to the points raised on behalf of the, it is necessary to dispose of the objection taken by Mr. R. S. Chatterji on behalf of the resps. that the Court of appeal below did not come to any definite finding that the attached goods belonged to the pltfs. This objection is without any force. The Court definitely found "In the above circumstances we cannot but hold that those moveable of Ojha Brothers were not liable to attachment and sale in that execution case". Shearer, J. proceeded on the footing that the Court of appeal below was satisfied that "Messrs Ojha Das and Co. and Messrs Ojha Brothers, were two separate and distinct firms and that the property which had been attached by Messrs. Volkart Brothers in execution of their decree belonged to the latter and not to the former firm". He appears to have accepted this as a finding of fact binding in second appeal. 10. Mr. G. P. Das on behalf of the does not press the appeal with regard to the three items, two of Rs. 60 each and the other of Rs. 50, which were paid by the surety Raghubir Tewari, He presses the appeal with regard to the other three items, (1) Rs. 70-10, (2) Rs. 357-8-6 and (3) Rs. 85. 11. With regard to the item of Rs. 357-8-6, Mr. Dass contention is that the pltfs. had to pay the amount under compulsion of legal process and, therefore, the payment could on no account be said to be voluntary. He relies on the decisions of the Privy Council in Dooli Chand v. Ram Kishun Singh, 8 I. A. 93 and Kanhya Lal v. National Bank of India Ltd. (40 I. A. 56). In the first case, the pltf. who had paid to the deft, a sum of money to prevent the sale of a certain mouza which had been attached and put up for sale in execution of a decree obtained by the deft, against a third person, sued to recover back the money. In the first case, the pltf. who had paid to the deft, a sum of money to prevent the sale of a certain mouza which had been attached and put up for sale in execution of a decree obtained by the deft, against a third person, sued to recover back the money. It was contended that the payment was voluntary. This contention was rejected by their Lordships in the following words : "But the objections taken to the action were that the payment was voluntary, and that the remedy, if any, was in the execution proceedings. Their Lordships think that there is no pretence for saying that the payment was voluntary. It was made to prevent the sale which would otherwise inevitably have taken place of the mouza which the resps. had purchased, and was made therefore under compulsion of law; that is under force of these execution proceedings." In the second case 40 I. A. 56, the deft. Bank obtained a decree against a certain limited company and, in execution of that decree, attached and took possession of certain mills of which the pltf. claimed to be the sole proprietor. The pltf. paid the decretal amount under protest and subsequently instituted a suit to recover back that amount. It was held that the money was paid under coercion within the meaning of S. 72, Contract Act, and was, therefore, recoverable. The following passage from their Lordships judgment is instructive: "A wrongful interference with the pltfs. lawful enjoyment of his own property is alleged. The pltf. was clearly entitled to rid himself of that unlawful interference by any lawful means without thereby affecting his right to hold the defts. liable for that which they have thus caused him to do. It is true that paying under protest the sum demanded was not the only course open to him. He might have taken legal proceedings, by which, sooner or later, he might have rid himself of the interference. But to do so would have involved his submitting to the wrong for all the period necessary for those proceedings to be effective and that might have been a serious aggravation of the wrong. To this he was in no way bound to submit. He was free to choose a course which did not involve any such prolongation of the trespass. To this he was in no way bound to submit. He was free to choose a course which did not involve any such prolongation of the trespass. Accordingly he paid under protest the sum demanded, and under English law he was unquestionably entitled to demand a repayment of that sum because it was an involuntary payment produced by coercion, namely, the wrongful interference of the defts. with his full and free enjoyment of his own property. By English law it is not open to the wrongdoer to prescribe by which of two lawful alternatives the injured man puts a stop to the wrong under which he is suffering. His choice of any one alternative does not make it as between him and the wrongdoer a voluntary act or estop him from claiming, that it was done under coercion." Though the money was paid "under protest", their Lordships do not appear to have attached, any importance to that fact. In their view, the payment was made under the force of the execution proceedings and must, therefore, be regarded as being made under compulsion. 12. Here, in execution of the decree against Ojha Das and Company, attachment was taken out against the goods belonging, not to them, but to the pltfs. In the claim case preferred by the pltfs., they had to furnish security, as ordered by the Court. The suretys property was sold, and in order to save the property, the pltfs. had to pay the sum of Rs. 357-8-6. The pltfs. were not liable under the decree, and the payment made by them to save the property cannot but be regarded as being made under the force of the execution proceedings. 13. Shearer J. in his judgment referred to the aforesaid Privy Council decisions, but apparently he felt bound by the decision of this Court in Raghu Ram v. Deokali Pande, 7 Pat. 30. In that case it was held that where a property has been sold in execution of a money decree and a payment is made under O. 21, R. 89, Civ. P. C., the person making such payment must accept the validity of the sale and cannot, therefore, maintain a suit for refund of the money deposited by him. 30. In that case it was held that where a property has been sold in execution of a money decree and a payment is made under O. 21, R. 89, Civ. P. C., the person making such payment must accept the validity of the sale and cannot, therefore, maintain a suit for refund of the money deposited by him. Kulwant Sahay J. who delivered the judgment, to which James J. agreed, observed : "A payment under R. 89 must be an unconditional payment with the object of the money being paid to the D.-H. Once a payment is made under O. 21, R. 89 it is clear that the person making the payment cannot be heard to say that the sale was not a valid sale and that the money deposited should not be paid to the D.-H. The J.-D. or the person interested is under no compulsion to make the deposit under O. 21, R. 89. Such a deposit is a voluntary deposit and the person making the deposit cannot in my opinion maintain a suit for a refund of the money deposited by him." The reason why the deposit was held to be a voluntary deposit will appear more clearly from the following passage: "If the property sought to be sold does not really belong to the J.-D., then the sale of the property in execution of a money decree will not affect the rightful owner of the property and he can ignore the sale and resist the auction-purchaser in his attempt to take possession of. the property after the sale. a person who is the owner of the property is not affected by a sale of the right, title and interest of the J.-D. to whom the property does not belong." In other words, if a person, who is the true owner of the property and is, therefore, not affected by the sale, makes payment under O. 21, R. 89, ha does so as a mere volunteer. 14. In this Patna case there is no reference to the aforesaid Privy Council decisions. But Kulwant Sahay J. followed the decision in Narayan v. Amgauda, 45 Bom. 1094 in which those Privy Council, decisions were considered. 14. In this Patna case there is no reference to the aforesaid Privy Council decisions. But Kulwant Sahay J. followed the decision in Narayan v. Amgauda, 45 Bom. 1094 in which those Privy Council, decisions were considered. In that Bombay case, the deft, who had obtained a decree against a third person, got certain property sold and purchased it himself, and the pltf., who claimed to be the owner in possession of the property, got the sale set aside under O. 21, R. 89 by paying into Court the decretal amount and five per cent, of the purchase-money, and on the amount being paid to the D.-H., the pltf. sued to recover and back. It was held that under O. 21, R. 89 the amount must be taken to have been deposited for payment to the D.-H. voluntarily and unconditionally and therefore, no suit could lie to recover it back. Macleod C. J. who delivered the leading judgment observed: "If the true owner allows the attachment to continue, ft the property to be sold as belonging to the j.-D. he can treat the sale as a nullity and resislt the auction-purchaser. There is no necessity for him to get rid of the sale of what in his opinion does not exist. The attachment of the property itself is a different matter, that may seriously inconvenience him, but if he is the true owner the sale of a non-existent interest in it does not affect him. If he pays in money to get that sale set aside it can only be treated as a voluntary payment." The said two Privy Council decisions were distinguished on the ground that "a payment made under protest to get rid of an attachment or to prevent a sale in execution stands on a different footing and that the ratio decidendi of these cases cannot be applied to a payment made under R. 89 in support of an application to set aside a sale of the right, title and interest of a third party held in execution of the decree." But, it is to be observed, in the first of those Privy Council cases, there was no question of payment under protest. 15. In a later case, Shankerrao Keshavrao v. Vadhilal Mulchand 57 Bom. 601, the Bombay High Court took the same view, though not without some hesitation. In that case, the plffs. 15. In a later case, Shankerrao Keshavrao v. Vadhilal Mulchand 57 Bom. 601, the Bombay High Court took the same view, though not without some hesitation. In that case, the plffs. sued to recover back the amount which they had paid under O. 21, R. 89 to set aside a sale held in execution of a mortgage decree under which the pltfs property was not liable. The mortgaged decree was satisfied by the sale of that portion only of the mortgaged property which belonged to the pltffs. The mortgagee as well as the mortgagor were made defts. in the suit. It was held that the pltffs. were entitled to a declaration that the land belonging to them was not liable to be sold in execution of the mortgage decree, but they were not entitled to recover the amount claimed from the mortgagee, because the amount must be taken to have been deposited for payment to him voluntarily and unconditionally. Patkar, J. who delivered the leading judgment, after referring to the said two Privy Council decisions, stated: "If the owner, in order to save the property from sale pays the amount to the D. h. he can recover back the money so paid under S. 72, Contract Act, on the ground, that the payment was involuntary or obtained by coercion. In the present case, the pltfs. paid the money after the sale under O. 21, R. 89, to set aside the sale on payment to the D. h. of the amount of the decree and five per cent of the sale price to the auction-purchaser. If the matter were res integra it might have been possible to hold that the pltfs. are entitled to recover back the amount under S. 72, Contract Act. The action of the pltfs. would not be a voluntary payment of the debts of the other defts. 2 to 6 who were liable, but it was a payment made to save their property and get it back from the mortgagee D. h. who had wrongly allowed it to be sold in execution of the mortgage decree." His Lordship then quoted the passage, cited above, from 40 I. A. 56 and proceeded as follows: "The sale of survey No. 159 was a wrongful interference with the pltfs enjoyment of their own property and the pltfs. were entitled to rid themselves of the unlawful interference by any lawful means without thereby affecting their right to hold deft. 1 liable for what he had caused them to do. After the sale the only lawful means by which the pltfs. could get rid of the unlawful interference of deft. 1 was by payment under o. 21, R. 89, and it was not competent to deft. 1 to prescribe some other way to put a stop to the wrong to which they were subjected." In conclusion, however, his Lordship followed the decision in the earlier case in 45 Bom. 1094 which was also followed by this Court in 7 Pat. 30. Barlee J. who agreed with him, but delivered a separate judgment, stated, with preference to the Privy Council decision in 40 I. A. 56. "Their Lordships of the Privy Council held that he was entitled to succeed inasmuch as he had paid under legal coercion and was entitled to rid himself of the unlawful interference of the Bank by any lawful means. Thus a payment, into Court made to remove a trespass can be recovered by suit: His Lordship then proceeded as follows: "But according to the view adopted by a Bench of this Court in Narayan v. Amgauda, 45 Bom. 1094 a payment made under o. 21, R. 89, to have a safe set aside is not a payment to remove a trespass...... Kanyaya Lals case 40 I. A. 56 was cited but distinguished and the main ground of distinction was that what had been sold was not the property which A claimed but the right, title and interest of S in it. There had been no actual trespass and on the assumption that the property belonged to A and not to the J. D. S. there was no threat of trespass, their Lordships considered against the property of A for A by paying the debt of S was protecting not his own property which was not in danger, but the non-existent right, title and interest of S in the property. 16. 16. Thus, according to the said Patna and Bombay decisions if the payment under O. 21, R. 89 is made by a third person who claims to be the real owner of the property sold, the payment is voluntary, because he is thereby protecting not his own property which is not in danger, but the non-existent right, title and interest of the J. D. in that property. 17. In the present case, the property given in security by Raghubir Tewari was sold and the pltffs made the payment under O. 21, R. 89 to save that property from sale. It cannot be said that they made the payment to protect any non-existent right, title and interest. It was in obedience to the order of the Court that the pltffs. had to furnish security which was actually given by Raghubir Tewari. According to the finding of the lower appellate Court, the goods which were attached by Volkart Brothers belonged, not to their J. Ds. but to the pltffs. The pltffs. had to pay the money under the force of execution proceedings. The principle laid down in the said Patna and Bombay decisions, therefore, has no application here. In my opinion, the payment made by the pltffs. can on no account be said to be voluntary. 18. Mr. R. S. Chatterji further relies on the Full Bench decision in Krishna Ayyar v. Arunachalum Chettiar, (58 Mad. 972) in which the real question for decision was whether a deposit under o. 21, R. 89 could be accepted subject to any condition or protest. It was held that no condition could be attached to such deposit. The facts of that case are quite distinguishable from those of the present. 19. Mr. Chatterji next contends that Raghubir having stood surety, the decree could be validly executed against him under S. 145, Civil P. C. and therefore, the pltffs, cannot recover the money paid under o. 21, R. 89 which went to satisfy the decree. But Raghubir stood surety, not for the J. Ds., but for the pltffs., as ordered by the Court in the claim case, and he undertook the responsibility (sic) for payment of the decree in case the claim was rejected. But Raghubir stood surety, not for the J. Ds., but for the pltffs., as ordered by the Court in the claim case, and he undertook the responsibility (sic) for payment of the decree in case the claim was rejected. The claim, no doubt, was disallowed by order dated 5-9-1941, but that order was subject to the result of the present suit which was in the meantime brought under o. 21, R. 63. Raghubirs property was sold long after the institution of this suit. As pointed out by the Privy Council in Phul Kumari v. Ghanshyam Misra, 35 I. A. 22, a suit under O. 21, S. 63 (S. 283 of the old Code) is substantially a suit to set aside the summary decision in the claim case. On the finding of the lower appellate Court, there could be no valid attachment of the pltffs goods and consequently Raghubir as surety could not be held liable for payment of the decree. 20. In this view it is unnecessary to consider the further question raised by Mr. Chatterji, namely, whether there was a good consideration for Raghubir standing as surety. 21. Next, as regards the item of Rs. 70-10, Mr. G. P. Das contends that the suit is governed, not by Art. 29, but by Art. 49, Limitation Act. Art. 29. refers to a suit "For compensation for wrongful seizure of moveable property under legal process" for which the period of limitation is one year from the" date of the seizure". Mr. Chatterji relies on the decision in Madras Steam Navigation Co. Ltd. v. Shalimar Works Ltd., 42 Cal. 85 in which the pltff company sued the deft, company for wrongful arrest of a ship belonging to the former. The suit as framed was based on malice or its equivalent, but at the hearing, the plaintiff company proceeded on the footing of the suit being one for mere trespass. It was held that in the absence of proof of malice or its equivalent, a suit for simple trespass would not lie for the arrest of a ship. The suit as framed was based on malice or its equivalent, but at the hearing, the plaintiff company proceeded on the footing of the suit being one for mere trespass. It was held that in the absence of proof of malice or its equivalent, a suit for simple trespass would not lie for the arrest of a ship. On the question of limitation raised, it was held that assuming that an action would lie in the absence of proof of malice or its equivalent, the action would be for wrongful seizure under legal process and would be barred by Art. 29, Limitation Act But the present suit is not for compensation for wrongful seizure of the pltffs goods, but for recovery of the money which was realised by the D. Hs. by sale of those goods. Mr. G. P. Das contends that the suit will be governed by Art. 49 which refers to suits "For other specific moveable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same." The period of limitation for such suit is three years from "When the property is wrongfully taken or injured or when the detainers possession becomes unlawful." Mr. Das relies on the case of Maharaj Bahadur Singh of Baluchar v. Achala Bala Devi, A. I. R. (15) 1928 Cal. 106 in which it was held that a suit for value of crops wrongfully attached, cut and removed by the deft, would be governed by Art. 48 or Art. 49, and not by Art. 29 or Art. 36, Limitation Act. Upon the facts of the present case, I think the proper article applicable will be Art. 49. The cause of action for the suit arose when the attached goods were sold and the proceeds were paid to the D. Hs. The attached goods were sold and Rs. 70-10 out of the proceeds was paid to the D. H. in August 1942, and the suit, so far as it related to the recovery of money, must be deemed to have been instituted on 14-12-1943 when the plaint was amended. The suit was, therefore, well within three years. Consequently the claim for recovery of Rs. 70-10 cannot be said to be barred by limitation. 22. As regards the last item of Rs. 85, the objection taken by Mr. The suit was, therefore, well within three years. Consequently the claim for recovery of Rs. 70-10 cannot be said to be barred by limitation. 22. As regards the last item of Rs. 85, the objection taken by Mr. Chatterji is that this amount having been allowed as costs in the claim case, the pltffs. are not entitled to recover it. He relies on the decisions in Shama Purshad v. Hurro Purshad 10 M. I. A. 203 and Dwarka Nath v. Mohendra Nath 16 C. l. j. 437. It was held in these cases that money realised under a decree or judgment cannot be recovered back in a new suit or action, while such decree or judgment under which it was recovered remains in force, as the original decree or judgment, must be taken to be subsisting and valid until it has been reversed or superseded by ulterior proceeding. As already pointed out a suit under o. 21, R. 63 is substantially a suit to set aside the summary decision in the claim case. Here, the order in the claim case was in effect set aside by the Court of appeal below. Consequently, the said decisions do not stand in the pltffs way of obtaining a refund of Rs. 85. The order in the claim case having in effect been set aside, the D. Hs. are not entitled to retain this sum which they realized on the strength of that order. 23. It is further contended by Mr. Chatterji that in any case the remedy of the pltffs. with regard to this Rs. 85 is not by a separate suit, but by an, application under s. 144, Civ. P. C. But s. 144 by its terms has no application to the present case. Here, the claim for refund of the sum of Rs. 85 is made in the very suit under o. 21, R. 68. If by the decree passed in this suit the order in the claim case is set aside, there is no reason why in this very suit the pltffs. will not be entitled to a refund of the amount. 24. In the result I would allow the appeal in part, set aside the decision of Shearer J, and decree the suit for recovery of three sums of (1) Rs. 70-10, (2) Rs. 357-8-6 and (3) Rs. 85. The pltffs. will not be entitled to a refund of the amount. 24. In the result I would allow the appeal in part, set aside the decision of Shearer J, and decree the suit for recovery of three sums of (1) Rs. 70-10, (2) Rs. 357-8-6 and (3) Rs. 85. The pltffs. will also be entitled to a declaration, as sought for. Both parties will be entitled to their respective costs throughout in proportion to their success, the pltffs. Costs to be recovered from deft. 1. 25. Lakshmikanta Jha, C. J. :- I agree. Appeal allowed partly.