Judgment :- 1. The State is the appellant. The only contention which has been urged before us by the Advocate General is as regards limitation. The question is which is the Article of the Schedule to the Limitation Act, 1963, that governs the tacts of this case: is it Art.24 or Art.113. The State contends that the applicable provision is Art 24 and that the court below has wrongly applied Art.113. 2. The respondent-plaintiff, The Thalayar Tea Co. Ltd., succeeded to the interests of the Talliar Coffee Estates, Ltd. (hereinafter referred to as the 'coffee company') by virtue of a scheme of amalgamation entered into between the two companies and sanctioned by order of the High Court of judicature at Madras in C.P. No. 25/1971. The coffee company had on 1-7-1966 instituted O. S. No. 70/1966 in the Sub Court, Kottayam. The question which arose in that suit was whether seigniorage was payable in respect of the silver oak trees cut and removed from its (1st plaintiffs) property and sold to plaintiffs 2 and 3. It was contended by the coffee company that silver oak trees were the absolute property of the company and that no seigniorage was payable in respect of those trees cut and removed from its property. That suit was dismissed on 30-6-1967. However, the coffee company's appeal (A. S. No. 326/67) was allowed by this Court on 25-11-1970. The position therefore was that between 30-6-1967, when the suit was dismissed, and 25-11-1970, when the appeal was allowed, the coffee company was held to be liable in respect of seigniorage of silver oak trees cut and removed from its property. But the position changed with the decision of this Court on 25-11-1970. No seigniorage was declared to be payable by the company in respect of silver oak trees cut and removed from its property. 3. The following were the reliefs sought in O.S. No. 70/1966: "A. a declaration that the silver oak timber cut and removed from the 1st plaintiff's property scheduled hereunder are the 1st plaintiff's absolute and exclusive property sold to the plaintiffs 2 and 3 and that the plaintiffs are not liable for any seigniorage for the silver oak trees thus cut and removed and that orders and demands to the contrary for seigniorage by the 1st defendant state and its officers be cancelled. B. a permanent injunction restraining defendants from realising any seigniorage as per the demand made by the 2nd defendant's letter to the plaintiffs dated 15-12-65. C. amount of deposit and seigniorage collected by the defendants as shown in (he statement of account below be directed to be refunded to the plaintiffs or a decree be given to the plaintiffs for recovery of the same from the 1st defendant with interest at 6% per annum." (emphasis supplied) The reliefs sought were granted by this Court in the following words: "8. In the result, the appeal is allowed. The suit is decreed as prayed for with costs in both the courts" (emphasis supplied) 4. While O.S. No. 70/1966 was pending, the coffee company cut and removed trees on payment of seigniorage. They continued to do so on payment of seigniorage after the dismissal of their suit and before the decision of this Court in appeal Seigniorage was thus paid on various dates between 1-3-1967 and 25-6-1969 as shown in the statement of accounts scheduled to to the plaint. The total seigniorage paid by the company was in the sum of Rs 2,04,740.17 together with a sum of Rs. 5331.51 as sales-tax. It was subsequent to the disposal of the appeal that the amalgamation of the coffee company and the plaintiff took place on 26-11-1972. The present suit (O.S.No. 83/1973) was instituted by the plaintiff on 6-4-1973 for realisation of a total sum of Rs.2,43,168.48, being the seigniorage, the sales-tax and the interest paid by the coffee company to the Government and the past and future interest at 6% p.m. on the principal sum of Rs. 2,12,993 48. 5. In answer to the plaint allegations various contentions on the merits were raised by the State in its written statement. The Court below however held that the State was barred by reason of resjudicata from reagita-ting the questions already decided by the judgment in A.S. No. 326 of 1967. The court further found that the suit was not barred by limitation as Art.113 applied to the case. It is this finding on limitation which now arises for our consideration as that is the only point which the Advocate General has urged in bis arguments. According to him Art 113, which is a residuary provision, has no application as Art 24 specifically applies to this case. 6. It is this finding on limitation which now arises for our consideration as that is the only point which the Advocate General has urged in bis arguments. According to him Art 113, which is a residuary provision, has no application as Art 24 specifically applies to this case. 6. If the Advocate General is right in his contention, the suit is barred by limitation, for, all the amounts in question were paid prior to July 1969 and the present suit was instituted as late as 6-4-1973. On the other band, if Art.113 applied, as found by the court below, the suit is not barred by limitation as it was filed within 3 years from the date on which the plaintiff's right was finally and conclusively declared by this Court on 25-11-1970. Art.24 and 113 read as follows: Table:#1 7. The contention of the plaintiff has been that seigniorage was paid by the coffee company under compulsion. It was not a voluntary payment. The company was forced to make the payment. 8. Art.24 has its origin in the common law action of a quasi-contractual nature called'money had and received by the defendant to the plaintiff's use.' When money has been received by one man to the use of another under compulsion, duress or wrongful authority, or by mistake of fact or in pursuance of an ineffective agreement or through'waiver of torts' Anson, English Law of Contract, 22nd Edn., pp. 575-587. The law says that he ought to pay it over to him As stated by Lord Mansfiled, C, J.: "This kind of equitable action to recover back money which ought not in justice to be kept is very beneficial and, therefore much encouraged. It was only for money paid ex aequo et bono the defendant ought to refund. But it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition express or implied, or extortion or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. But it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition express or implied, or extortion or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.": Moses v. Macfarlan, The All E. R., Reprint 1558 to 1775, p. 581, 586." It is with an aspect of this equitable action for 'money had and received' that Art.24 is concerned. This article governs, among others, cases where money has been paid by the plaintiff to the defendant under compulsion, extortion or oppression. It is not necessary that at the time of receipt of the money the defendant should have in fact had the intention to receive it for the use of the plaintiff, provided in justice and equity the law would impute such intention to him. Where the defendant has received money belonging to the plaintiff which ex aequo et bono he ought to refund, the plaintiff has a cause of action for money had and received to the plaintiff's use. The money is nonetheless received to the plaintiff's use. because the defendant unjustly detains it for his own benefit. This form of action would be maintainable in cases in which the defendant at the time of receipt, in fact or by presumption or fiction of law receives the money to the use of the plaintiffs': Mohamed Wahlb v. Muhamed Ameer (ILR. 32 Cal. 527, 533) per Mookerjee J.; See also Venkata Subba Rao v. State of A.P. (AIR. 1965 SC. 1773), where the dictum laid down by Mookerjee J. was adopted as the correct law. 32 Cal. 527, 533) per Mookerjee J.; See also Venkata Subba Rao v. State of A.P. (AIR. 1965 SC. 1773), where the dictum laid down by Mookerjee J. was adopted as the correct law. Referring to this question, this is what Rajagopala Ayyangar J. says: "...the learned judge [Mookerjee J.] held that it was not necessary in order to attract Art.62 [of Act 9 of 1978] that at the moment of the receipt the defendant should have actually intended to receive it for the use of the plaintiff and that it was sufficient if the receipt was in such circumstances that the law would impute to him an obligation to retain it for the use of the plaintiff and refund to him when demanded." Ayyangar J. then referred to certain other decisions of both Calcutta and Bombay High Courts where a different note was struck and remarked: "Having considered the matter carefully we are inclined to prefer the interpretation of the Article by Mookerjee J." Ayyangar J. made specific reference to cases where Art.62 (now Art.24 of Act 36 of 1963) would not apply. This is what he says: "Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art.62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English 'action for money had and received' still if there are other more specific articles in the Limitation Act vide, e. g., Art.96 [mistake], Art.97 [consideration which fails] Art.62 would be inapplicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently Art.62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit or the very moment of the receipt." (emphasis supplied) 9. In the present case money was admittedly received by the State under compulsion or through oppression. Such money injustice and equity continued to belong to the plaintiff, although at the time of receipt the State had purportedly received it for its own benefit. That was money which the State ought to have injustice and equity refunded to the plaintiff, for the law would impute to the State an intention to have received it for the use of the plaintiff. That was money which the State ought to have injustice and equity refunded to the plaintiff, for the law would impute to the State an intention to have received it for the use of the plaintiff. In respect of such amounts the period of limitation is three years from the date of receipt. 10. Shri. T.S. Venkiteswara Iyer, for the plaintiff-respondent, submits that the suit could not have been brought within the period limited under Art.24, for the plaintiff had no cause of action until its right was declared by the High Court on 25-11-1970. He therefore contends that Art.24 has no application and the residuary Art.113 must apply in which event the suit was brought within time as the right accrued only when it was declared. Counsel submits that when the coffee company's suit against the State (O.S.70/ 1966) was dismissed by the trial Court holding that the trees in question were not exempted from seigniorage by judgment dated 30-6-1967, any action against the State by the coffee company in respect of the very same matter would have been rejected by reason of its judicata. Counsel relies on the observation of Ayyangar J. in Venkata Subba Rao v. State of A. P. (supra) and submits that Art.24 cannot apply if there was no cause of action to institute the suit at the time of receipt of the amounts by the defendant. The cause of action, counsel points out, had merged in the judgment of the trial court in O. S.70/1966. The bar of res judicata, be says, was removed only with the judgment of the High Court on 25-11-1970, which is the starting point of the period of limitation, if Art.113 is applied, and the present suit is therefore well within time. 11. This argument in my view suffers from a fundamental fallacy. There is no bar of resjudicata where the decree is under challenge in an appeal. During the pendency of the appeal or during the time allowed for filing the appeal there is no finality attached to the decree within the meaning of S.11 C. P. C. As stated by Lord Macnaghten in Sheosagar Singh v. Sitarama Singh, (1897) ILR. 24 Cal. 616: 24 I. A. 50: "To suport a plea of resjudicata it is not enough that the parties are the same and that the same matter is in issue. 24 Cal. 616: 24 I. A. 50: "To suport a plea of resjudicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been'heard and finally decided'. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal." (emphasis supplied) A judgment under appeal or for which the appeal time has not expired is only a provisional judgment and does not operate as res judicata: Balkishan v. Kishan Lal (1889) I.L.R XI All. 148; Chengatvala Gurraju v Madapathy Venkateswara Row, (1916) 30 M.L.J. 379; Baijnath v. Vallabadas, A.I.R. 1933 Mad 511,514; Abdullah Ashgar Ali Khan v. Ganesh Dass, (1917) I.L.R. XLV Cal.442 (PC); Mst. Annapurnabii v. Mst. Pyaribai, A.I.R. 1960 M.P. 222; Bhavani Amma v. Narayana Acharya, A.I.R. 1963 Mys.120 As stated by the privy Council in Annamalay Chetty v. Thornhill (A.I.R 1931 P.C. 263): "Where an appeal lies the finality of the decree on such appeal being taken, is qualified by the appeal, and the decree is not final in the sense that it will form res adjudicata as between the same parties " (per Lord Thankerton) See also the observations of the Supreme Court in A.I R.1974 S.C.1380, and of the Privy Council in A.I R.1926 P.C 93. Although not suspended audits operation not interrupted, and is therefore executable, such decree or the execution thereof is only provisional and is qualified by the appeal. Where pending an appeal a suit is instituted on the same cause of action and between the same parties, such suit is not barred by res judicata, although its trial is liable to be stayed under S.10 C.P.C, being res sub judice, pending the decision of the appeal in the first action: See the observation of Lord Thanker-ton on this aspect, (ibid) See also the principle stated by the Supreme Court in State of UP v. Mohammad Nooh (A.I.R. 1958 S.C.86, 95.) 12. The doctrine of merger has no application to a judgment which lacks the finality of res judicata within the meaning of Section II,C.P.C. The cause of action in O S.70/1966 did not, in view of the appeal, merge in the decree of the trial court. Even assuming that it did, the cause of action sued upon in O.S 83/1973 was not the same as that in O.S.No.70/1966. While the cause of action in O.S No. 70/1966 arose in respect of seigniorage paid on silver oak trees cut and removed prior to the date of that suit, the cause of action in the present suit (O S. No. 83/1973) has arisen in respect of seigniorage paid on trees cut and removed subsequent to the date on which O. S.70/1966 was instituted. This is a point which 1 shall have to further discuss in connection with Art 101. Assuming that the judgment in O.S. No 70/1966 had the necessary finality to bring about merger of the cause of action, any such merger could not have touched the cause of action arising from payments made subsequent to the date of that suit. In any event, even if it is possible to construe the judgment in O.S. No. 70/1966 as having any bearing at all on the future rights and liabilities of the parties a construction which I cannot for a moment accept it can only be in the nature of a 'naked' or 'bare' declaration which cannot in the nature of things bring about a merger. For these reasons, I can see no substance in the contention that on the dates of receipt by the defendant of the amounts in question, the plaintiff had no cause of action by reason of merger. 13. I am not satisfied that the decision in O.S. No. 70/1966 constituted res judicata when the matter itself was pending in appeal. The cause of action subsisted at all material times. The institution of a subsequent suit was not barred; only its trial was liable to be stayed. Neither the cause of action nor the remedy by action which the plaintiff had was destroyed during that period. (See the distinction drawn by Lord Esher M. R. and Chitty L. J. between the action and the cause of action in Coburn v. Colledge (1897) 1 Q.B. 702, 706, 709-710). Neither the cause of action nor the remedy by action which the plaintiff had was destroyed during that period. (See the distinction drawn by Lord Esher M. R. and Chitty L. J. between the action and the cause of action in Coburn v. Colledge (1897) 1 Q.B. 702, 706, 709-710). The money in equity and justice was repayable by the defendant to the plaintiff at all material times. The applicability of Art.24 is therefore not in doubt. 14. However Shri Venkiteswara Iyer alternatively submits that the present suit is a suit on judgment and therefore Art.101 must apply. He says that the suit was filed on the basis of the judgment of the High Court in A. S. No.326/67 which was rendered on 25-11-1970. Accordingly, counsel says, the present suit, having been filed within three years of that date, has been brought within time. Art.101 reads as follows: Table:#2 It is well settled that a suit on judgment of an Indian Court is not permissible where remedy by execution is available. The Civil Procedure Code says that the courts have jurisdiction to try all suits of a civil nature except those of which their cognisance is either expressly or impliedly barred. S.47 (1) of the Code says: "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit". It is the policy of the legislature not to encourage a fresh suit for the purpose of enforcing a decision in an earlier suit. Only where the decree in the earlier suit is not executable does the law confer a right to bring a fresh suit. The Madras High Court in Ramasami alias Palunna Nathan v. M.P.M. Muthayya Chetty (ILR. 48 Madras 482,485 and 487) stated: "In India it is settled that no action lies on an executable judgment, the only remedy being execution, the principle being embodied in S.47, Civil Procedure Code Ordinarily the Indian Courts pass judgments which are to be enforced in execution and even when they create new relation involving fresh rights and obligations, they provide for working out the rights in execution. Merely do they create a new obligation without providing for its execution and indicating a suit as the only method of enforcing it." As observed by the Calcutta High Court in Kalicharan Nath v. Sukhoda Sundari Debi (20 CWN. 58), an action is permissible "only where the judgment cannot be enforced in some other way." See also Black on judgments, 2nd Edn.,1902, Vol. II, Chap.24. 15. The prayer in O.S. No. 78/1956 was in respect of sliver oak timber cut and removed. The declaration was sought only in respect of such timber. The injunction also was sought in respect of the demands made on these timber. The prayer for refund was also in respect of the seigniorage collected on such timber. There was no prayer for declaration in regard to trees to be cut and removed in the future. The prayer was limited on the facts of that case to silver oak timber already cut and removed. The prayer was in respect of the past acts and not as to what was proposed to be done in the future. The decree of the High Court must therefore be understood in terms of the reliefs sought. In the operative part of the judgment this is what this Court stated: "In the result, the appeal is allowed. The suit is decreed as prayed for with costs in both the courts. The seigniorage already collected by the 1st respondent will also be refunded to the appellants." (emphasis supplied) The decree was strictly confined to the reliefs sought. The declaration granted under the decree was only as regards the trees cut and removed. The refund ordered was only in respect of the seigniorage already collected. The injunction was likewise restricted to the demand already made. None of the reliefs sought and granted was therefore incapable of execution. "No new relation involving fresh rights and obligations" had been created. (ILR 48 Madras, 482, 487). Whatever right or obligation was declared or created under the judgment and decree of the High Court was in terms executable. In the circumstances Art.101 of the Limitation Act has no application to the present case. Accordingly I hold for the reasons already stated that the relevant provision is Art.24 which provides that a suit brought after three years from the date of receipt of the money by the defendant is barred. The residuary Art.113 has therefore no application. In the circumstances Art.101 of the Limitation Act has no application to the present case. Accordingly I hold for the reasons already stated that the relevant provision is Art.24 which provides that a suit brought after three years from the date of receipt of the money by the defendant is barred. The residuary Art.113 has therefore no application. The learned judge in my view wrongly held that Art.24 did not apply. In the present case all amounts were received more than three years prior to the date of institution of the suit. Accordingly the suit is barred by limitation. The judgment and decree of the court below are therefore set aside; the suit is dismissed; and the appeal is allowed with costs of the appellants-defendants throughout. Viswanatha Iyer J. 1A. The facts of the case have been succinctly stated in the judgment of my learned brother and so there is no need to repeat them. But with respect, I take a different view on the question of limitation in respect of the amount paid by the company towards seigniorage subsequent to 30-6-1967 the date of the trial court judgment in the earlier suit O. S.70/1966. That amount comes to Rs. 1,76,673.32. This amount was paid between 9-8-1967 and 20-6-1969. As rightly pointed out by my learned brother if Art.24 will apply to the suit there is no scope for applying Art.113. So the question is whether Art.24 will apply. Now it is fairly clear by the judgment of the Supreme court in Venkata Subba Rao v. State of A. P. (AIR 1965 SC. 1773) that the suit contemplated by this Article corresponds to the form of action in English law known as one for money had and received for the plaintiff's use. To attract this Article, it is not necessary that at the moment of the receipt of the money the defendant should have actually intended to receive it for the use of the plaintiff, it is sufficient it the receipt was in such circumstances that the law would impute to him an obligation to refund it. To attract this Article, it is not necessary that at the moment of the receipt of the money the defendant should have actually intended to receive it for the use of the plaintiff, it is sufficient it the receipt was in such circumstances that the law would impute to him an obligation to refund it. But if the obligation to refund does not arise immediately on the receipt by the defendant but arises by reason of facts' transpiring subsequently, this Article cannot apply for "it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt" see Venkata Subba Rao v. State of A. P. (AIR. 1965 SC. 1773 at 1794) This is further evident from the language used in the Article. Columns 1 and 3 together will read as follows: For money payable by the defendant to the plaintiff when the money is received. So the amount must be payable by the defendant to the plaintiff at the moment the money is received. If it is not due at that moment on account of a binding decision of a competent court which the defendant is entitled to rely on even if that decision is not final and is liable to be reversed, varied, modified or affirmed in a pending appeal, it cannot be said that the money is payable to the plaintiff when the money was received. It is not necessary that the decision between the parties should be final and binding as res judicata. It is not as if the judgment of the lower court becomes non est the moment an appeal is filed. It will only merge in the appellate decision and thereafter cease to be operative. When once there is a binding decision in force, the plaintiff cannot say that his right has been infringed by the defendant to base a cause of action. If this is the scope of a trial court decision pending in appeal which I think is correct, the first part of Art.24, namely "money payable by the defendant to the plaintiff" when the money is received is not satisfied. So Art.24 will not apply. The only Article applicable is the residuary Art.113 and it is not disputed that the suit will be within time under this Article. 2A. So Art.24 will not apply. The only Article applicable is the residuary Art.113 and it is not disputed that the suit will be within time under this Article. 2A. But this conclusion will not apply to the first two payments made by the plaintiff before the trial court judgment O. S.70 of 1966. The claim in respect of them will not be governed by Art.113, but only Art.24. Similarly the sales-tax paid by the plaintiff reckoning the seigniorage also towards the sale price of timber cut from the property cannot be claimed so long as the sales-tax assessment stands. Possibly this amount should not have been included. In the turnover of the dealer. Even if there is any error in the determination of the turnover a suit for refund of the sales-tax assessed on it is clearly barred by the provisions of the Sales Tax Act. In the result, the appeal filed by the State is allowed in part, the decree and the judgment of the lower court are modified by limiting the amount recoverable by the plaintiff as Rs. 1,76,673.32 and interest at 6% from the date of demand, namely 16-9-1972, In the circumstances of the case parties shall bear their costs. Viswanatha Iyer & Kochu Thommen JJ.: We have differed in pur opinion on a point of law, namely, whether the suit is barred by limitation. So the case is adjourned for a further hearing and decision as provided for in the CPC. S.98 Sub-section (2) Proviso. Ordered accordingly. P. Subramonian Poti, Ag. C. J.: 1B. My learned brothers Viswanatha Iyer and Kochu Thommen JJ. differed on a point of law, namely whether the suit is barred by limitation. Accordingly the case was adjourned for further hearing and decision as provided under S.98 (2) proviso of the Code of Civil Procedure. The matter thus came up before me. 2B. The respondent-plaintiff the Talayar Tea Company succeeded to the interests of the Talliar Coffee Estates Limited on account of a scheme of amalgamation entered into between the two companies. The Talliar Coffee Estates Limited had instituted a suit O. S.70 of 1976 in the Sub Court, Kottayam on 1-7-1976. That suit arose on account of the claim made by the State of Kerala for seigniorage in respect of silver oak trees in the Estate of the plaintiff in that suit. The Talliar Coffee Estates Limited had instituted a suit O. S.70 of 1976 in the Sub Court, Kottayam on 1-7-1976. That suit arose on account of the claim made by the State of Kerala for seigniorage in respect of silver oak trees in the Estate of the plaintiff in that suit. The case of the company was that no fee, duty or tax was payable in respect of timber or silver oak trees, that they are not reserved trees mentioned in the Timber Transit Rules and they are not royal trees on which seigniorage was payable. But the Government insisted upon payment of such seigniorage for cutting and removing the silver oak trees. Consequently the suit was filed with the following prayers: "(a) a declaration that the silver oak timber cut and removed from the plaintiff's property scheduled hereunder are Talliar Coffee Estates Ltd.'s absolute and exclusive property and that Talliar Coffee Estates Ltd. is not liable for any seigniorage for silver oak trees thus cut and removed and that orders and demands to the contrary for seigniorage by the first defendant State and its Officers be cancelled. (b) a permanent injunction restraining the defendants from realising any seigniorage as per demand made by the second defendant's letter to the Talliar Coffee Estates Ltd. dated 15-12-1965. (c) the amount of deposit and seigniorage collected by the defendants be directed to be refunded to the Talliar Coffee Estates Ltd. or a decree be given to Talliar Coffee Estates Ltd. for recovery of the same from the first defendant with interest at 6 percent per annum." The suit was dismissed by the Sub Court, Kottayam. An appeal was taken by the plaintiff to the High Court. By judgment dated 25tb November, 1970 the High Court allowed the appeal and decreed the suit in terms of the plaint. Ext. Al is the judgment of the High Court in the said appeal. The decision of the Sub Court dismissing the suit was on 30-6-1967 and the decision of the High Court was on 25-11-1970. In O. S.70 of 1966 the complaint concerned the seigniorage that had been collected from the plaintiff till then. During the pendency of the suit also it was being so collected. When the Sub Judge dismissed the suit seigniorage continued to be collected until the High Court allowed the appeal on 25-11-1970. In O. S.70 of 1966 the complaint concerned the seigniorage that had been collected from the plaintiff till then. During the pendency of the suit also it was being so collected. When the Sub Judge dismissed the suit seigniorage continued to be collected until the High Court allowed the appeal on 25-11-1970. The claim in the present suit was for recovery of a sum of Rs. 2,43,168.43 of which a sum of Rs.2,04,740.17 represents the seigniorage so collected. Evidently that was the amount of seigniorage collected from the plaintiff till the date of the High Court judgment, Ext.Al. 3B. The question that arose in the court below concerned the article of the Limitation Act applicable to the suit. Whether Art.24 of the Limitation Act, 1963 or 113 of that Act would be applicable to the suit was the main controversy in the suit, The residuary Art.113 would apply only if Art.24 or any other article did not apply. The present suit was filed on 6-4-1973 within 3 years of the judgment of the High Court. According to the plaintiff cause of action arose on the date of such judgment and the suit within 3 years of that date was in time. But if the period of 3 years for filing the suit arose from the respective dates of payment by the plaintiff of seigniorage the claims falling beyond a period of 3 years prior to the institution of the suit would be barred by limitation. According to the State the suit was one for money had and received and was governed by Art.24 of the Limitation Act, 1963 corresponding to Art.62 of the earlier Limitation Act. If so the period in respect of each of the payments will commence on the respective dates on which seigniorage amounts were paid to the State. The contention of the plaintiff is that Art.24 will have no application since the right to sue accrued only when the High Court decided the suit in favour of the plaintiff in the earlier litigation. Though under Art.24 as well as Art.113 the period of limitation is 3 years the time from which time begins to run under the two articles is different. 4B. Though under Art.24 as well as Art.113 the period of limitation is 3 years the time from which time begins to run under the two articles is different. 4B. Amounts by way of seigniorage were recovered from the plaintiff against its will But the plaintiff had to pay it since had it refused to pay it would not have been permitted to remove the silver oak trees from its estate. It was not paid because the plaintiff agreed that there was liability to pay. Even when the payment was made liability to pay was disputed. I have already adverted to the prayers in the suit O.S.70 or 1966 That concerned only amounts paid prior to the institution of that suit. The plaintiff lost in the trial court. In between the date of the decision of the Sub Court and the decision of the High Court which accepted the plaintiff's case the plaintiff had to continue the operation of felling the trees and removing the timber That the plaintiff could do only on payment of the seigniorage. Evidently such seigniorage was not paid willingly but under protest. When the plaintiff seeks recovery of the amount so paid the action is one for money had and received. If so Art.24 would normally be applicable. If that Article is applicable Art.113 will stand automatically excluded. Does Art.24 apply to every action for money had and received? Will it apply to a case where the cause of action for recovery does not arise at the time of such payment? In the case before me did the claim for recovery of money against the State arise at the very moment of payment of money to the State under protest? That is the question which I am called upon to answer in order to decide the question of limitation in this case. 5B. Action for money had and received has its origin in the English form of action of that name. Art.24 of the Limitation Act concerns a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. The words "received by the defendant for the plaintiff's use" have a technical meaning and have necessarily to be understood in the light of the meaning of the term as employed in English forms of action. As early in the decision in Mahomed Wahib v. Mahomed Ameer, (ILR. The words "received by the defendant for the plaintiff's use" have a technical meaning and have necessarily to be understood in the light of the meaning of the term as employed in English forms of action. As early in the decision in Mahomed Wahib v. Mahomed Ameer, (ILR. 32 Cal. 527) Mookerjee J. had explained Art.62 corresponding to Art.24 of the present Act in these terms: "The Article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well-known English action in that form; consequently the article ought to apply wherever the defendant has received money which injustice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff." The Supreme Court of India in Venkata Subbarao v. State of A. P. (1965 SC. 1773) approved the dictum of Mukerjee J. in that case and explained it thus: "In other words, the learned judge held that it was not necessary in order to attract Art.62 that at the moment of the receipt the defendant should have actually intended to receive it for the use of the plaintiff and that it was sufficient if the receipt was in such circumstances that the law would impute to him an obligation to retain it for the use of the plaintiff and refund to him when demanded". In view of the clear exposition of the law by Ayyangar J. in the above decision I do not think it is necessary to go into this question in detail. Moreover it is agreed by both sides that this is an action for money had and received. The only controversy is whether, even so, Art.24 would apply. 6B. According to the learned Advocate General every action for money had and received will be governed by Art.24 and there can be no exception. Of course, he also contended that if there can be exception this is not a case of an exception, but a case to which the rule itself would apply. 7B. I may once again advert to the decision in Venkata Subbarao v. State of A. P. (A.I.R.1965 S. C. 1773). At para 62 of the judgment the court refers to certain cases where in action for money had and received the Article would not be applicable. 7B. I may once again advert to the decision in Venkata Subbarao v. State of A. P. (A.I.R.1965 S. C. 1773). At para 62 of the judgment the court refers to certain cases where in action for money had and received the Article would not be applicable. The court did not attempt to make any exhaustive list. The court said: "Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art.62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English "action for money had and received", still if there are other more specific articles in the Limitation Act vide, e. g. Art.96 (mistake), Art.97 (consideration which fails) Art.62 would be applicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently. Art.62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment. of the receipt." If the right to refund dees not arise immediately on the receipt by defendant that is a case to which the exception to the rule applies. If the case is one of exception Art.24 does not apply, but Art.113 applies. In Para.63 of the same decision the Supreme Court has illustrated a case where the plaintiff does not have a cause of action for instituting the suit at the very moment of the receipt. Reference is made to the decision in Govind Singh v. State of M. P. (AIR. 1961 M. P. 320). There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Art.120. That was because the right accrued to the plaintiff in that case only after the completion of the assessment. In Jain Bros & Co. v. State of Rajasthan, (AIR. 1964 Raj. A suit for the amount of that excess was held to be governed by Art.120. That was because the right accrued to the plaintiff in that case only after the completion of the assessment. In Jain Bros & Co. v. State of Rajasthan, (AIR. 1964 Raj. 17) a claim for refund of salestax was held to be governed by Art.62 of the Limitation Act since the "money which was exacted by the defendant from the plaintiff was immediately returnable to him, that is, at the very time of receipt, there being no sanction of law behind it, and, therefore, the defendant should be held to have received it in law for the plaintiff's use". That if there was a general bar in the way of the plaintiff in making claim to the money on the date when it was paid to the defendant then Art.62 will not arise, for application was held by the High Court of Pantna in Ambika Bhawani v. Chandrika Sing, (AIR 1974 Patna 264). Where the defendant was to keep the money in deposit with him until the entire goods were sold off and he had to hand over the money to the plaintiff thereafter on demand. Art.62 would not apply. This was what was said by the Allahabad High Court in Khairul Bashar v. Thannu Lal (AIR. 1957 All. 553). I need not illustrate this rule further, for in the passage to which I have adverted the Supreme Court has categorically laid down the rule that when the right to refund does not arise immediately on receipt by the defendant Art.62 can have no application. This leads me to the enquiry whether the plaintiff in the case could have at the very moment of payment to the defendant of the seigniorage assessed claimed refund of the said sum. If the plaintiff could have made such a claim he had a cause of action to sue and the suit for the amounts paid more than 3 years before the date of suit would be barred by limitation. 8B. According to learned Advocate General the decree dismissing the suit filed by the plaintiff did not in any way debar the plaintiff from suing for recovery of any amount wrongfully collected from the plaintiff. 8B. According to learned Advocate General the decree dismissing the suit filed by the plaintiff did not in any way debar the plaintiff from suing for recovery of any amount wrongfully collected from the plaintiff. It was only the High Court which gave a decree declaring the non-liability of the plaintiff for the claim by the State for payment of seigniorage. That too, as pointed out, was only in respect of seigniorage for a period prior to the commencement of the suit O. S.70 of 1966 and not for any period thereafter. 9B. There are two perspectives from which the question that arises here will have to be considered. Had the plaintiff right to contend that he was not liable to pay seigniorage despite the fact that the declaration sought by him stood negatived in the suit though the matter was pending in appeal before the High Court. The other is whether the plaintiff was precluded from agitating his claim in a suit because the judgment of the trial court would have in that case operated as res judicata. 10B. The second aspect could easily be answered When once an appeal had been filed to this court the matter became sub judice and there was no scope for any plea of res judicata then. The trial of any issue would not be barred as the judgment of the Sub Court had not become final then. In this view it is only the first of the two aspects I have mentioned above that arises for serious consideration. 11B. The plea of the State is that this is not a case where the trial court granted a declaratory decree but denied it to the plaintiff. It is said that such denial would not operate as a declaration of the absence of the right of the plaintiff though it may operate as a bar for the trial of the question over again if the judgment had become final. It is further said that in the earlier litigation O.S. No. 70 of 1966 the adjudication concerned only the seigniorage concerned the trees which had already been cut. The seigniorage payable in respect of trees to be cut thereafter was not governed by the terms of the decree. It is further said that in the earlier litigation O.S. No. 70 of 1966 the adjudication concerned only the seigniorage concerned the trees which had already been cut. The seigniorage payable in respect of trees to be cut thereafter was not governed by the terms of the decree. There was no bar operating so as to prevent the plaintiff from suing for refund of seigniorage wrongly collected from him In other worlds, despite the fact that the plaintiff disputed the claim to payment of seigniorage for an earlier period there was nothing which prevented the plaintiff from disputing similar claims for a subsequent period provided there was no bar of res judicata. It so on seigniorage being collected from the plaintiff illegally it was entitled to claim refund at the very instant of such collection. That means causes of action arose as and when wrong or illegal collections were enforced against the plaintiff. 12B. Going through the prayers in the plaint in O.S. No. 70 of 1966 which is seen extracted in the plaint in this case it is evident that the prayer in that suit was confined to the seigniorage which had been demanded by the Divisional Forest Officer, Munnar and which had been collected from the plaintiff in that suit. The declaration that the plaintiff was not liable for any seigniorage for silver oak trees concerned such trees as had been cut and removed. The declaration sought for did not concern the trees to be cut and removed in future. Therefore the cause of action for any wrongful collection made after the institution of the suit was independent of the adjudication is the suit O. S. No. 70 of 1966. That cause of action would survive despite the decision in O. S. No. 70 of 1966. Of course, if the decision in O S. No. 70 of 1966 had become final even if the cause of action arose in respect of subsequent collections the trial of the issue might have been barred by reason of res judicata. That being not the case here for reasons already indicated the cause of action could be worked out. That such cause of action did arise as and when the seigniorage was collected cannot be disputed. It is not as if it was postponed to a later date. That being not the case here for reasons already indicated the cause of action could be worked out. That such cause of action did arise as and when the seigniorage was collected cannot be disputed. It is not as if it was postponed to a later date. It is not as if by the decision in O S. No. 70 of 1966 the plaintiff was precluded from suing for a subsequent period. Of course it is another matter whether, as a prudent person, the plaintiff would have sued. But the right to sue was not in any way affected. 13A. In this case there is the further fact that there was no declaration granted at all by the trial court. It was not as if the trial court granted a declaration even in respect of seigniorage for an earlier period. The declaration sought was denied. No doubt there was a finding that seigniorage was payable. But I am concerned with the relief granted by the decree. That was one denying the plaintiff the decree sought for. In these circumstances I do not see any reason to hold that the right to sue was postponed or that the judgment Ext. Al gave rise to a cause of action for the first time. If the right of suit was available to the plaintiff all along the suit filed beyond the period of 3 years from the dates of payment would be barred. Only such of the claims as fall within the 3 years of the date of suit would survive. Art.24 would apply to the case. The case is not one which will fall within the exceptions illustrated by the Supreme Court in Venkata Subbarao v. State of Andhra Pradesh, AIR. 1965 SC. 1773. 14A. Now I will advert to another argument of learned counsel for the respondent Sri. T. S. Venkiteswara Iyer. Referring to Ext. Al judgment against O. S. No. 70 of 1966 learned counsel points out that while allowing the appeal and decreeing the suit as prayed for this court further made the direction that "The seigniorage already collected by the first respondent will also be refunded to the appellants." This could very well refer to the seigniorage collected prior to the suit which was referred to in the plaint. But according to learned counsel this refers to the seigniorage collected till the date of the judgment of the High Court and therefore the High Court judgment must be found to contain a further declaration concerning the seigniorage collected even after the date of the trial court decree even though this was not prayed for in the suit. This suit must, according to counsel, therefore be treated as a suit on judgment and if so having been filed within 3 years of the judgment of the trial court must be found to be in time. I must point out that this is a new approach. Assuming, without deciding, that the judgment Ext. Al directs refund of seigniorage collected by the State even after the date of the trial court decree there can be no suit on such judgment, for, it will then be an executable decree and that cannot form the basis for a suit on judgment, in an early case Ramaswami v. Muthiah Chetti, AIR 1925 Mad 279, Ramesan J. exhaustively deals with the history of a suit on judgment in India. It has been pointed out by Ramesan J. in that case that there is nothing in Indian atuho-rities against the maintainability of a suit on judgment though such cases can occur only very rarely. The learned judge said in that case thus: "Ordinarily the Indian Courts pass judgments which are to be enforced in execution and even when they create new relation involving fresh rights and obligations they provide for working out the rights in execution. Rarely do they create a new obligation without providing for its execution and indicating a suit as the only method of enforcing it. But when they do, as in the case, the suit is maintainable." The Madras High Court again adverted to this question in Rathan Chand Kumaji v. Amichand, A.I.R. 1934 Mad. 665. The court held that the right to sue for enforcement of rights declared in a former judgment or decree was not restricted to cases where the former judgment or decree fixed a definite amount as payable by one party to another and that the rights of parties may be declared in various ways. A Division Bench of the High Court of Nagpur referring to the decision in Yeshwantrao v. Bhasker Rao, AIR. 1955 Nagpur 250, referring to the decision in Ramaswami v Muthiah Chetti, AIR. 1925 Mad. A Division Bench of the High Court of Nagpur referring to the decision in Yeshwantrao v. Bhasker Rao, AIR. 1955 Nagpur 250, referring to the decision in Ramaswami v Muthiah Chetti, AIR. 1925 Mad. 279, accepted the rule in that decision and understood it to mean that if the court passes a decree which is not executable then the remedy is to file a suit to work out the rights created by the decree. These decisions may have no application to the facts of the case before us. It is not possible to construe the judgment of the High Court, Ext. Al, as adjudicating not only the issues which the court was called upon to adjudicate in the suit and granting the decree prayed for in the suit, but further passing a decree which was declaratory in nature but not executable. If, it is found to be executable, then, of course, there is no question of a suit on judgment. Even assuming that this court granted a decree outside the scope of the reliefs prayed for in the suit, to consider such decree as a non-executable declaration would not be justified on a construction of Ext. Al. If so this suit cannot be viewed as one on judgment. Now that I have answered the question of limitation against the plaintiff in the suit, namely, that Art.24 would apply to the suit, it is for the Division Bench to dispose of the appeal in the light of the decision on this point of law. Accordingly this is directed to be placed before a Division Bench which dealt with the appeal earlier along with my decision on the question of limitation referred to me, for disposal of the appeal in accordance with law. Viswanatha Iyer & Kochu Thommen JJ.:-In accordance with the opinion of the majority that the suit is barred by limitation the appeal is allowed; the judgment and decree passed by the lower court are set aside and the suit is dismissed. In the circumstances we make no order as to costs. Allowed. The respondent asks for leave to appeal to the Supreme Court. We are not satisfied that any substantial question of law of general importance which in our opinion requires a decision by the Supreme Court arises in this case. Leave is refused.