JUDGMENT B.D. Agarwal, J. - This is a plaintiff's appeal. It arises out of a suit for recovery of money. 2. Banaras Hindu University, the plaintiff-appellant, is a body corporate governed by the Banaras Hindu University Act, 1915 and the Statutes framed thereunder. Jyoti Bhushan Gupta, defendant 1 (since dead) was Treasurer of the University. During the relevant period 1963-64 Gokul Dass Nagar, defendant 2, was Senior Assistant Cashier. On July 24, 1964 a report was made that there was shortage of Rs. 10,000/- in the Finance Section which is a wing of the Central Office of the University. The Treasurer placed Nagar under suspension with effect from 4-8-1964. First Information Report was lodged by him on 5-8-1964, for offence, under S. 408, Penal Code. A request was made by the Treasurer to the Accountant General, U.P. for special audit on 6-8-1964, in respect of the Imprest and Recoupment account of the Cashier, 1963-64. The special audit report is dated 9-2-1965. On 10-2-1965, this was placed before the Vice Chancellor. It disclosed defalcation of a sum of Rs. 60,000/- including the amount of Rs. 30,000/- which is in dispute in this case and is covered by the four cheques mentioned below. 1. Cheque D/- 13-11-1963 Rs. 5,000 2. Cheque D/- 13-11-1963 Rs. 5,000 3. Cheque D/- 28-01-1964 Rs. 10,000 4. Cheque D/- 30-01-1964 Rs. 10,000 According to the plaintiff, Gokul Dass Nagar, defendant, encashed these cheques by way of taking temporary advance from the State Bank (University Branch), but did not deposit the amount or accounted for the same otherwise. It was not entered in the cash book either. The special audit report was considered by the Finance Committee in its meeting held on 8th April, 1966. It recorded its views in confidence for the purpose of being placed before the Executive Council. The Executive Council accorded approval on April 13, 1966. 3. The suit giving rise to the appeal was instituted on 9th April, 1969 by the University against Jyoti Bhushan Gupta. It was averred that the defendant was negligent in not observing the Account Rules. The cheques could not be drawn unless the amount was required for immediate disbursement. The Cashier himself could not be the payee for the cheques. Vouchers were not prepared. Entry of any voucher was not made in the Advance Ledger. It was averred that the defendant was negligent in not observing the Account Rules. The cheques could not be drawn unless the amount was required for immediate disbursement. The Cashier himself could not be the payee for the cheques. Vouchers were not prepared. Entry of any voucher was not made in the Advance Ledger. The Treasurer did not verify and signed the cheques despite there being no supporting voucher. Cheques were not entered in the Cheque Register. A sum of Rs. 30,000/- was embezzled by Gokul Dass Nagar, the Senior Assistant Cashier. In defence, Jyoti Bhushan Gupta refuted that there was negligence or non-observance of requisite rules on his part. He was not concerned with the maintenance of accounts which was the responsibility of the Accounts Officer. The Accounts Officer, Assistant Accounts Officer, Cashier, Accountants besides other assistants were responsible to maintain the accounts. In regard to the embezzlement it was stated that a criminal case has been launched. Plea of limitation was also raised. 4. Preliminary issue whether the suit was bad for non-joinder of Nagar, the Cashier, and those occupying the posts of Accounts Officer and the Assistant Accounts Officer was decided by the trial court on 26-11-1969. The Court below observed that the relief to the plaintiff could not be given without arriving at the finding that Nagar had embezzled the amount as alleged in the plaint and it could not be proper to give this finding at his back and moreover the court had also to avoid the multiplicity of suits. The University applied on 17-12-1969 to implead Gokul Dass Nagar which was allowed 10-1-1970. Nagar was impleaded as defendant 2. He put in written statement contending that there was no irregularity on his part. The defalcation was the result of negligence of the Accounts Officer, the Assistant Accounts Officer and the Finance Section of the University. He worked under the direction of the Treasurer. The defendant, it was further pleaded, did not encash the cheques but allowed them to remain in the State Bank under transfer credit. He also raised the plea of limitation against the suit. 5. Learned First Additional District Judge found that the amount in question had been received by the defendant 2 who encashed the cheques in question. It was not correct to say that the amount had been deposited by transfer credit. Instead it was embezzled by the defendant 2. He also raised the plea of limitation against the suit. 5. Learned First Additional District Judge found that the amount in question had been received by the defendant 2 who encashed the cheques in question. It was not correct to say that the amount had been deposited by transfer credit. Instead it was embezzled by the defendant 2. Defendant 1 was negligent; negligence was there on the part of other employees also but the plaintiff had not brought the suit against them. Limitation for filing a suit against those others had expired. This amounted to relief granted to them and it had the result to discharge the others. Defendant 1 could not be made liable to pay the amount. According to the trial court, this was a case of joint tortfeasors jointly and severally liable for the amount. Limitation, it was held, was governed by Article 4 of the Limitation Act, 1963. The misconduct of embezzlement became known to the Vice Chancellor in any case on 10-2-1965. In view of para 141 (iii) of the Account Rules, the Vice Chancellor had to proceed to recover the amount. The suit instituted on 9th April, 1969 was beyond 3 years and hence barred by time. Against defendant 2 it was barred also since it was to be deemed to have been instituted against him on 10-1-1970 when he was impleaded on the record. The suit has been dismissed accordingly. Aggrieved, the plaintiff preferred this appeal. Cross-objection has been filed by Gokul Dass Nagar in respect of the findings recorded against him. Both were heard together. 6. Preliminary objection was raised by counsel for respondent (Gokul Dass Nagar) to the effect that the appeal having abated against Jyoti Bhushan Gupta, arrayed- as respondent 2 in the memo of appeal, it cannot be maintained or proceeded with against the surviving respondent. Jyoti Bhushan Gupta died on 13-8-1974. Application was made on 18-3-1975 to implead his widow and sons accompanied with an application under S. 5, Limitation Act, for condonation of delay. This was rejected by a learned Single Judge of this Court on 8-2-1979 with the observation that the appeal had abated against this respondent. This, in my opinion, cannot in itself serve to make the appeal abated in so far as the surviving respondent is concerned. 7. Upon the pleadings of the parties. This was rejected by a learned Single Judge of this Court on 8-2-1979 with the observation that the appeal had abated against this respondent. This, in my opinion, cannot in itself serve to make the appeal abated in so far as the surviving respondent is concerned. 7. Upon the pleadings of the parties. and the evidence placed on the record, the case is not of joint tortfeasors. Persons are said to be joint tortfeasors when their separate shares in the commission of the tort are done in furtherance of a common design" (Winfield: Tort (12th Ed) 1984 page 605). It is nowhere averred in the case before me that the two defendants acted in concert or that they conspired to embezzle. The case set up by the University is that defalcation was made by the Senior Assistant Cashier and the Treasurer was guilty of negligence in not conforming to the Account Rules. The breaches of duty by the two defendants in their respective sphere caused allegedly single injury to the appellant The appellant is entitled to sue all or any of them for the full amount of the loss. The court below was not right in having treated this as a case of joint tortfeasors. At page 604 in Winfield on Torts it is observed : "Where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, which means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiffs' advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him." 8. It is greatly to the plaintiffs' advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him." 8. Regard being had to the averment hereof, it cannot be said legitimately that the appellant could not have brought the action for the necessary relief against Gokul Dass Nagar alone, who is still before the Court in the appeal. Effective order can be passed against this respondent defendant in the event of the charge being made out and despite the absence of the other defendant, namely, the Treasurer. No conflict of decrees can be said to arise for the obvious reason that they were not joint tortfeasors. None of the three tests laid in the State of Punjab v. Nathu Ram, AIR 1962 SC 89 , followed in R.P. Gupta v. Murli Prasad, AIR 1972 SC 1181 , can be said to be satisfied so as to lead to the conclusion that the appeal against the remaining respondent is incompetent. In Rani Dhandei Kuer v. Fatma Zuhra, AIR 1939 All 698 , cited for the respondent, the plaintiff had based her claim on an act alleged to have jointly committed by all the defendants and the relief claimed was jointly against the defendants, in those terms. This evidently constitutes the distinguishing feature. 9. This can be viewed from another angle also. According to the plaintiffs' case, the Treasurer was guilty of breach of statutory duty contained in the Account Rules and hence he became liable in tort. It is neither alleged nor shown that the liability was contractual. Under the general common law rule based on the maxim actio personalis moritur cum persona, the death of either party extinguishes any existing cause of action in tort by one against the other. It is not the case of the University that any property was appropriated by the Tesasurer or that he added the same to his estate, (see Winfield on Tort page 657). The cause of action against Jyoti Bhushan Gupta, the Treasurer, therefore died with his death. It is not the case of the University that any property was appropriated by the Tesasurer or that he added the same to his estate, (see Winfield on Tort page 657). The cause of action against Jyoti Bhushan Gupta, the Treasurer, therefore died with his death. No question arose therefore to substitute his legal representatives on the record in accordance with O. 22 R. 4/11, C.P.C. It is settled that application under O. 22, R. 4 cannot be filed, if the right to sue does not survive at all or if it survives against the surviving defendants alone. In such a case R. 2 will apply. R. 2 provides that where there are more defendants than one and any one of them dies and where the right to sue survives against the surviving defendant alone, the Court shall cause an entry to that effect to be made on record and the suit shall proceed against the surviving defendant. The preliminary objection raised for the respondent cannot, therefore, be sustained. 10. Learned counsel for the appellant urged that the court below erred in taking the view that the suit was barred by limitation. It may be recapitulated that there was report made on 24th July 1964, pointing that a sum of Rs. 10,000/-, was short in the Finance Section. Special Audit report D/d. 9-2-1965 was placed before the Vice Chancellor on 10-2-1965 and the Finance Commission considered this on 8th April, 1966. It came up before the Executive Council for the first time on April 13, 1966 when it took the decision in the matter. The argument advanced is that the limitation should have been taken to commence on 13th April, 1966 and hence the suit brought on 9th April 1969 be treated as within limitation. For the other side it is maintained that the starting point of limitation would be 10-2-1965, if not earlier, because the Vice Chancellor, in any event, became apprised on that date upon the Audit Report being received. The trial court has applied Article 4, Limitation Act, 1963. The relevant Articles which may deserve consideration are : Description of suit Period of Limitation Time from which period begins to run 4. Other suits by principals against agents for neglect or misconduct. Three Years When the neglect or misconduct be comes known to the plaintiff. 68. The trial court has applied Article 4, Limitation Act, 1963. The relevant Articles which may deserve consideration are : Description of suit Period of Limitation Time from which period begins to run 4. Other suits by principals against agents for neglect or misconduct. Three Years When the neglect or misconduct be comes known to the plaintiff. 68. For specific movable property lost, or acquired by theft, or dishonest mis-appropriation or conversion. Three years When the person having the right to the possession of the property first learns whose possession it is. 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years When the right to sue accrues. 11. In so far as Article 68, corresponding to Article 48 (First part of the old Act) is concerned. this stands ruled out for the reason that the suit in the present (case) is not for "specific movable property". This expression means property of which one may demand the delivery in specie. This connotes property which can be specified by the delivery of the identical subject. Contrary view was taken by a Division Bench of this Court in Rameshwar v. Mata Bhikh, (1883) ILR 5 All 341, Money was also treated as specific movable property. Doubt was expressed in regard to this view in Ramlal v. Ghulam Husain (1907) ILR 29 All 579 and again in Jaganji v. Bandan AIR 1930 All 397 and Benares Bank Ltd. v. Ram Pd., AIR 1930 All 573 but the authority in Rameshwar v. Matabhik (supra) was nonetheless followed. Controversy on this aspect was set at rest in Raghunath Das v. Gokul Chandra AIR 1958 SC 827 . It was held that the expression "specific movable property" appearing in Article 49 of the old Limitation Act is apt only to govern suit wherein the plaintiff can allege that he is entitled to certain specific movable property and/or of which he is presently entitled to possession in specie and which the defendant has wrongfully taken from him and/or is wrongfully withholding from him. This was a suit by an -heir against other heirs to recover his share of movable estate. It was held that this could not be treated as claim for specific movable property wrongfully taken such as is contemplated in Article 49 and that instead limitation was governed by Article 120 of the old Act. This was a suit by an -heir against other heirs to recover his share of movable estate. It was held that this could not be treated as claim for specific movable property wrongfully taken such as is contemplated in Article 49 and that instead limitation was governed by Article 120 of the old Act. It has been followed by a Division Bench of this Court in State of U.P. v. Hindustan Lever Ltd., AIR 1972 All 486 . 12. Coming to Article 4. it may not be doubted that in these matters the position of the Treasurer was that of an agent vis a vis the University and, as is stated in para 4 of the plaint also. Nagar functioned under his supervision and control. Under Statute 12(1) of the University as then in force, the Treasurer was elected by the Court from among a panel of three persons nominated by the Executive Council which was subject to the approval of the visitor. The Treasurer was responsible, subject to the powers of the Executive Council to see that all monies are expended on the purpose for which they are granted or allotted Cl. (6) specified that the receipt of the Treasurer or of the person or persons duh authorised in this behalf by the Executive Council for any money payable to the University shall be sufficient discharge for the same. The Treasurer also used to be a Member of the Finance Committee vide Statute 22A. The office was held in honorary capacity. In para 35 of his written statement Gokul Dass Nagar, respondent, admits that he was to act under the orders and directions of the Treasurer as well as the Accounts Officer. The `Agent' within the meaning of Article 4 is a person employed to do any act for another or to represent another in dealings with third persons. Contract of agency need not be created by a written document. It may be inferred from the circumstances and the conduct of the parties. In A.C. Mukerji v. Municipal Board. Banaras, AIR 1924 All 467 the Municipal Board sued its Executive Office for defalcation in accounts done by the Head Accountant. This was considered to be a can of agency. Contract of agency need not be created by a written document. It may be inferred from the circumstances and the conduct of the parties. In A.C. Mukerji v. Municipal Board. Banaras, AIR 1924 All 467 the Municipal Board sued its Executive Office for defalcation in accounts done by the Head Accountant. This was considered to be a can of agency. The Division Bench observed that where it can be shown that a loss sustained it the principal is directly traceable to disregard on the part of the agent or directions issued to him regarding the conduct of business, even though such disregard may have been due to nothing worse than negligence or over-confidence in the honesty of others. Such misconduct on the part of the agent was actionable. The defendants were acting within the scope of their authority though, according to the case of the University there was abuse of the same on their part. 13. Assuming as the appellants' counsel submits that Article 4 is inapplicable, the residuary provision left over in the matter is Article 113. In either event, the position remains the same. In one case the limitation commences when the neglect or misconduct becomes known to the plaintiff and in the other the starting point is when the right to sue accrues. The right to sue can be said to accrue when the act of negligence or misconduct becomes known to the person competent to take action in that behalf. The starting point of limitation would thus be the same whether Article 4 or Article 113 is applied. The question is whether the Vice Chancellor could not be competent to proceed on the special audit report and the material placed before him on 10-2-1965. It is argued for the University that the Executive Council is the authority and action could not be taken before 13th April, 1966 when for the first time, the matter was placed on the agenda of the meeting of the Executive Council. I find little substance in this contention. 14. The Vice Chancellor is the principal Executive and Academic Officer of the University, vide Statute 9(1), corresponding to Sections 7B and 7C of the Act as at present. I find little substance in this contention. 14. The Vice Chancellor is the principal Executive and Academic Officer of the University, vide Statute 9(1), corresponding to Sections 7B and 7C of the Act as at present. Statute 18(2)(iii) deals with the powers of the Executive Council providing that it had to manage and regulate the finances, accounts, investments, property business and all other administrative affairs of the University and for that purpose to appoint such agents as it thinks fit. The Vice Chancellor had the duty laid upon him to see that the Acts, Statutes, Ordinances and Regulations were faithfully observed and he was expressly conferred with all powers necessary for the purpose. He also had the power to convene meetings of the Executive Council. In Statute 9(5) the provision made was that the Vice Chancellor shall exercise general control over the affairs of the University and shall give effect to the decisions of the authorities of the University. The Account Rules contain instructions for the conduct of the financial and accounting works in general. Para 141(ii)/(iii) is material and may here be reproduced as under : "(ii) whenever any loss of stores or other property by embezzlement, fraud, theft, or negligence of any University employee or other causes is discovered, at preliminary investigation shall forth with be made into the loss by the Head of Office and the result of such preliminary investigation shall be reported to the Registrar who will obtain suitable orders of the Vice-Chancellor and also report it to the Finance Committee and the Executive Council in due course, if the loss exceeds Rs. 50/-. A detailed enquiry shall simultaneously be made by an officer of the University or a special committee appointed for the purpose as may be required by any general or special order of the Executive Council. If the circumstances attending to the loss demand it, or if the Executive Council so desires, arrangement may be made with the Accountant General Tor expert examination of accounts by means of special audit. If the circumstances attending to the loss demand it, or if the Executive Council so desires, arrangement may be made with the Accountant General Tor expert examination of accounts by means of special audit. When the matter has been fully enquired into taking due account of the report showing the total money lost, the circumstances in which the loss took place and the steps taken or recommended to recover the money and to punish the offenders and measures taken or proposed to be taken to avoid recurrence of such loss in future shall be submitted to the Executive Council. through the Finance Committee for orders. The Executive Council may order the amount of the loss to be written off. (iii) Whenever embezzlement of University money is discovered, an enquiry shall at once be instituted by or under the orders of the Vice Chancellor who will also bring the matter to the notice of the Finance Committee and the Executive Council showing the total sum misappropriated or embezzled, its modus operandi. and steps taken to recover the money and punish the offenders." 15-16. Para 141, it will be noticed, deals with losses. The instructions contained therein are to be followed in dealing with losses. Cl. (ii) deals with losses in general, Cl. (iii) is specific in relation to embezzlement of university money. It enjoins upon the Vice Chancellor to institute enquiry at once upon embezzlement being discovered and to bring the matter to the notice of the Finance Committee and the Executive Council showing the total sum embezzled, its modus operandi and also steps taken to recover the money and punish the offenders. The Vice Chancellor did not have, therefore, to sit idle with his hands tied for so long as the matter did not come to be placed for one reason or the other before the Executive Council. He could initiate action on his own general and wide authority as the Chief Executive of the University responsible to ensure that the Acts, Statutes and the Rules were carefully observed. In my view, it would not be correct in face of this to say that the right to sue within the meaning of Article 113 did not accrue to the University, in 1965 for the mere reason that the matter had not till then been considered by the Executive Council. In my view, it would not be correct in face of this to say that the right to sue within the meaning of Article 113 did not accrue to the University, in 1965 for the mere reason that the matter had not till then been considered by the Executive Council. Limitation commencing on 10-2-1965 would expire thus clearly on 9-2-1968 irrespective of whether the plaintiff appellant invokes Article 4 or Article 113, Limitation Act. 17. In addition to the above, learned counsel for respondent 1 contended that so far as this respondent is concerned the suit is to be deemed as having been instituted on 10-1-1970, when he was for the first time impleaded as defendant 2 to the suit and hence too the suit against him is barred by three years rule of limitation. Reliance is placed on S. 21(1), Limitation Act, 1963, which reads as under :- "(1) Where after the institution of a suit a new plaintiff or defendant is substituted or added. the suit shall, as regards him, be deemed to have been instituted when he was so made a party. Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date." As mentioned above, the suit instituted on 9th April, 1969, was against the Treasurer alone. He raised a plea of non-joinder whereupon the trial court directed on 26-11-1969 that the Senior Assistant Cashier he also impleaded and this was done on 10-1-1970, upon application D/- 17-12-1969. The appellants' counsel argued that the joinder of defendant 2 being considered as that of a proper party only, the suit is not to be considered as barred by limitation in terms of S. 21 aforementioned. On the facts hereof this d not represent the correct legal position. But to reasons stated above. the suit including against the defendant 2 would have barred by limitation on 9th April, 1969 itself even if he had been arrayed as a party at initial stage. This apart the case not being joint tortfeasors each of the two defend stood on his own footing. But to reasons stated above. the suit including against the defendant 2 would have barred by limitation on 9th April, 1969 itself even if he had been arrayed as a party at initial stage. This apart the case not being joint tortfeasors each of the two defend stood on his own footing. The suit against defendant 1 could not be thrown out due the Senior Assistant Cashier being not mad party; there is a distinct and self contain cause of action set up against defendant charging him with embezzlement of a specific amount. No such charge is made against the other defendant. It is quite true that on account of the defendant 2 being not impleaded till 1-1970, the suit against defendant 1 does become barred by limitation, but so far relief sought against defendant 2 himself concerned, the suit evidently is beyond it. In the suit initially framed the plaintiff could not get any relief against this defendant 2. order that recovery of money might be from him there was no other way except sue him either separately or by way of impleadment in the present action. I do know how for the sake of recovery claim against this defendant 2 it might he claimed that he is to be regarded a proper but necessary party. No decree against him obtainable behind his back. 18. The principle enunciated in Devidas v. Shrishailappa, AIR 1951 SC 1277 at p. 1282 was: "The rule that a person who ought to h been joined as a plaintiff to the suit and is made a party will entail dismissal of the suit, the suit as regards him be barred by limitation when he is joined, has no application to non-joinder of proper parties. In Guruvayya's (1904) ILR 28 Bom 11, a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff described as the manager of the family. At late stage of the suit, defendants raised objection that the other members of the family had not been joined. The trial court allowed the application filed by the other members be joined as parties and decreed the suit the appellate court dismissed the suit holding that it was barred because of S. 22, Limitation Act. The High Court held that S. 22, Limit Act. The trial court allowed the application filed by the other members be joined as parties and decreed the suit the appellate court dismissed the suit holding that it was barred because of S. 22, Limitation Act. The High Court held that S. 22, Limit Act. does not in itself purport to determine directly whether the joinder of the parties after the institution of a suit in all cases necessarily involves the bar of limitation if the period prescribed for such suit has then expired. Such a result must depend upon whether the joinder was necessary to enable the court to award such relief as may be given in the suit as framed. If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of the Limitation Act." 19. The crux of the matter is whether fresh parties are "merely joined for the purpose of safeguarding the rights subsisting between them and others claiming generally in the same interest." If this is so the determination of the date of the institution of the suit as regards such freshly joined parties "does not ordinarily affect the right of the original plaintiff to continue the suit......" In a suit by manager, for instance, if the other co-sharers are adults and the right to insist on the other co-sharers being brought on the record is for the benefit of the defendant to ensure himself against further litigation, the subsequent joinder of the adult members as co-plaintiffs or proforma defendants did not attract S. 22 of old Act (Guruvayya Gowda v. Dattatrava Anant, (1904) ILR 28 Bom 11, (See also Secretary of State v. Dhirendra Nath Roy, AIR 1934 Cal 187, The position changes where there is relief sought against the newly added defendant in his own right. Against defendant 1 (Jyoti Bhushan Gupta) the suit may not have failed because Gokul Das Nagar (defendant 2) was not brought on record earlier than 10-1-1970 but this by no means suggests that even as against defendant 2 from whom recovery is claimed, the rule of limitation be bypassed. Against defendant 1 (Jyoti Bhushan Gupta) the suit may not have failed because Gokul Das Nagar (defendant 2) was not brought on record earlier than 10-1-1970 but this by no means suggests that even as against defendant 2 from whom recovery is claimed, the rule of limitation be bypassed. The Court cannot do otherwise than dismiss a suit which was barred by limitation. The power of a Court to add a party and the duty of that Court to dismiss the suit as barred by limitation are two different questions. Imamuddin v. Liladhar, (1892) ILR 14 All 524, It was held that where the Court added a plaintiff of its own motion and the suit is such as could not he brought without him, S. 22, Limitation Act, 1877 applied to right of suit of the person so added. A Full Bench of the Calcutta High Court affirmed in Ram Kinkar Biswas v. Akhil Chandra Chaudhary, (1908) ILR 35 Cal 519 that a Court adding a party on its own motion is not freed from the restrictions of the Limitation Act. 20. In Sheo Prasad v. Mt. Parkash Rani, AIR 1948 Oudh 164 relied on for the appellant the suit was brought to enforce a mortgage deed against the mortgagor, the purchaser of the property and other persons. One S applied and was made defendant at his instance as a subsequent mortgagee. S. 22, Limitation Act, 1908, it was held, did not apply; the reason being that a suit is not liable to be dismissed if a puisne mortgagee is left out. The decree in such a suit shall bind all those who claim interest through the mortgagor irrespective of whether they are or are not impleaded as parties. It is this that constitutes the distinguishing feature. In the present case a decree against defendant 1 could not of its own force bind defendant 2. 21. The decision in Ongole Byragi Mutt Ongole v. Inala Kannayya, AIR 1960 Andh Pra 98 (FB) is also of no assistance to the appellant. The Managing Trustee of a Mutt filed suit to recover damages for use and occupation on ground that the defendants were in unauthorised occupation of the land. The defendants resisted on ground that the action brought only by one of the trustees was not maintainable. Thereupon the two other trustees were impleaded as supplemental defendants. The Managing Trustee of a Mutt filed suit to recover damages for use and occupation on ground that the defendants were in unauthorised occupation of the land. The defendants resisted on ground that the action brought only by one of the trustees was not maintainable. Thereupon the two other trustees were impleaded as supplemental defendants. Upon the bar raised of S. 22, Limitation Act 1908 it was held : "If however at the inception, the necessary parties are impleaded, the non-joinder of other persons who are not necessary or indispensable but whose joinder is only desirable to safeguard their rights and the rights of others and to prevent further litigation does not render the suit as improperly constituted and the joinder of those parties after the period of limitation will not have necessitated the dismissal of the suit." 22. It will be noticed that decree in favour of the Trust could have been passed even if co-trustees were not arrayed as plaintiffs or pro forma defendants. In case the suit were dismissed, the co-trustees will have been equally bound, but in the present (case) there is relief distinctly claimed against defendant 2. A decree in favour of or against the other defendants will not have of its force bound defendant 2. 23. The position is enunciated in S.R. Shete v. S. M. Hedge, AIR 1921 Bom 152 by a Division Bench : "If the plaintiff was seeking any relief against them clearly his claim to such relief would be barred. But it does not follow in all cases where a party is added as defendant to the record after the period when the main relief claimed by the plaintiff against the other defendants would he barred, that by adding that defendant the whole of the plaintiffs claim becomes barred by limitation". (Emphasis supplied) 24. The joinder of defendant 2 not being for his benefit or to safeguard him against future litigation but with a view to seek recovery against him in case misconduct is established, and, since there is the claim specifically against him and a decree in favour of or against defendant 1 alone will not have bound defendant 2, there can, in my opinion, be no escape from the application of S. 21(1) of the new Limitation Act. 25. Learned counsel made reference also to the proviso to S. 21(1). 25. Learned counsel made reference also to the proviso to S. 21(1). The proviso does appear in the corresponding S. 22 of the old Act. The court below was misdirected in having relied upon S. 22 instead of S. 21 of the new Act though the cause of action accrued when the new Act had come into force. Upon the material on the record it is not possible, as the respondent's counsel rightly urged, to record a finding that the non-impleadment of Gokul Das Nagar defendant in the suit as originally instituted was due to a mistake made in good faith. The averments contained in the plaint as initially filed speak for themselves in this behalf. It was stated even at this stage that the embezzlement was done by Nagar and the details thereof were also given. When the question arose of his impleadment on objection raised by the Treasurer the stand taken for the University before the lower Court as recorded in its order D/- 26-11-69 was that a criminal complaint was proceeding against Nagar who actually had embezzled the amount and further that it was not decided whether any civil action would be brought against him and other respondents in that behalf. The application to implead Nagar was opposed for the University on this basis. It was nowhere maintained in the pleadings or in the application 44C D/- 17-12-69 to implead Nagar that the omission to array him as a defendant was on account of some mistake in good faith. Prior to the institution of the suit the matter had been considered at length at various lever Finance Committee deliberated over the same: It came up also before the Executive Council. We have on record that eminent lawyers of this Court were also consulted before the suit was brought. The decisions not to proceed in civil action against Gokul Das Nagar appear themselves to have been deliberately reached after deliberation and thought given to the matter. The proviso to S. 21(1) may not be invoked where the plaintiff decides to be wiser after the event and is unable to pinpoint as to where and how did the mistake arise much less that this occurred despite due care and caution being observed. 26. Before the trial court reference for the University was made to S. 10, Limitation Act, also. 26. Before the trial court reference for the University was made to S. 10, Limitation Act, also. This, however, has not been pursued before me in this Court. The reason is apparent. S. 10, Limitation Act, contemplates the situation where property has become vested in a trust in the person concerned for any specific purpose. The expression `trust' is used in this section in a technical sense and denotes an obligation which would be a trust in the strict sense of the terms of the law. Mere fact that a person is loosely called a trustee for the sake of convenience and has obligation analogous to those of a trustee will not make him a trustee under this section. `Specific purpose' means a purpose which is specific, or expressed. There has to be a trust create by the act of a party and it will not apply to trust arising by operation of law or implied trust or obligation in the nature of trust Hussain Ali v. Baquir Ali, AIR 1946 Mad 116 V.B. v. G. Sambayya, AIR 1959 A.P. 186 . 27. Consideration being had to the observations made in the above, the conclusion, in my opinion, is irresistible that the suit was barred by limitation when instituted on 9th April, 1969 itself and that against Gukul Dass Nagar, defendant, it is barred by time also in view of S. 21(1), Limitation Act. 1963. In regard to Jyoti Bhushan Gupta a note needs also be made of the fact that in the appeal there was no relief sought against him though he was arrayed as respondent 2. There is a specific note at the foot of the memo of appeal which reads : "The present appeal is being filed for the relief claimed against respondent 1, Sri Gokul Dam Nagar alone in accordance with Executive Council's resolution No. 287 D/- 26-2-1972." The appeal has thus been pursued virtually against Gokul Das Nagar respondent 1, alone from the initial stage. 28. Respondent 1 has filed cross objection upon the findings recorded against him. Since the appeal fails on ground of limitation, in any event, as discussed above, it is not called upon to enter into merits of those other findings. 29. The appeal and the cross objection are consequently dismissed. In the circumstances costs shall be borne by the parties throughout.