RECOVERY OF POSSESSION OF MOVABLE PROPERTY
INTRODUCTION:
A person entitled to the possession of specific movable property may recover the same in the manner prescribed by the Code of Civil Procedure and A person who is in the possession of specific movable property not as owner can be compelled to deliver the same to the person entitled to its immediate possession)
MEANING OF MOVABLE PROPERTY:
The term movable property is defined u/s 3(34) of the General Clauses Act i879 as under:
"Movable Property" is property of every description except immovable property
MEANING OF POSSESSION:
According to Salmond
“It is a continuing exercise of a claim to the exclusive use of a material objection"
RELEVANT PROVISIONS:
Sections 10 and 11 contained the relevant visions for the recovery of possession of movable property
PROCEDURE FOR THE RECOVERY OF POSSESSION OF MOVABLE PROPERTY:
Recovery of specific movable property-(section 10):
"A person entitled to the possession of the specific movable property may recover the same in the manner prescribed by the Civil Procedure Code”
ELUCIDATION OF CONCEPT:
If the possession of any movable property has been taken by the person who is not the owner then the person entitled to immediate possession of the same may compel the former to restore it.
Scope:
Against wrongful detention, there must be
Demand by plaintiff.
Refusal by the defendant.
The plaintiff has been prevented by the defendant.
The defendant has no right of possession & cannot claim remedy.
A person entitled to possession:
The word entitled to possession means:
A person may have the right to present possession
A person may have the right to immediate possession
The right either temporary or special can arise
By the act of the owner.
Independent of the act of the owner.
Property must be specific:
The specific goods must be ascertained and capable of identification the nature of the thing must continue to be the same
Decree:
The decree before the delivery of such property shall also state the amount of money to be paid as an alternative if delivery cannot be made.
If the goods sued for are not in the possession of the defendant, the Court will grant a decree for their monetary value
Goods in possession of third person:
To recover the possession of a movable property it is necessary to show that the goods were in the possession of a third party
Suit by a person having special or temporary right of immediate possession:
A person, vested with the special or temporary right to immediate possession of the movable property may bring a suit under this section.
Limitation:
The period of limitation for a suit /s 10 is three years from the date when the property is wrongfully taken as provided under Article 49 Schedule A of the Limitation Act
Appeal:
A decree passed under this section is appealable
LIABILITY OF A PERSON IN POSSESSION OF MOVABLE PROPERTY:
Section 11:
Any person having the possession or control of a particular article of movable property of which he is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession in any of the following cases
When the thing claimed is held by the defendant as the agent or trustee of the claimant
When compensation in money would not afford the claimant adequate relief for the loss of the thing claimed
When it would be extremely difficult to be certain of the actual damage caused by its loss
When the possession of the thing claimed has been wrongfully transferred from the claimant.
DETENTION AND CONVERSION
There are two distinct forms of action which are maintained against the defendant They are known as detention and conversion.
Detinue:
In detinue, the suit is primarily for the return of the chattel to which is usually added a claim for its value in default of its return.
The decree in such an action takes two alternatives:
Return of chattel to plaintiff or its value together with damages.
Value plus the damages for its detention.
Conversion:
The action for conversion is for damages and is based on an allegation that the defendant has converted the chattel to his use by some wrongful dealing with it.
POSSESSION AND CONTROL:
Possession and control of the defendant must be alleged in the plaint. Possession means actual physical possession.
MOVABLE HELD BY AS AGENT OR TRUSTEE:
If chattel is held as agent or trustee, a person may be compelled to restore the same to the person entitled to its immediate possession
COMPENSATION:
If compensation in money is not adequate relief, a person may be compelled to restore the same to the person entitled to its immediate possession
ACTUAL DAMAGE:
If it is extremely difficult to ascertain the actual damage person may be compelled to restore the same to the person entitled to its immediate possession
POSSESSION WRONG FULLY TRANSFERRED:
If chattel has been wrongfully transferred a person may be compelled to restore the same to the person who is entitled to its immediate possession.
DIFFERENCE BETWEEN N SECTIONS 10 AND 11:
NATURE OF REMEDY:
Section 10: The relief provided is general.
Section 11: The relief provided is a special.
NATURE OF PROPERTY:
Section 10: The relief provided is independent of the nature of the property.
Section 11: The relief provided is dependent upon the nature of the property.
SUIT AGAINST OWNER:
Section 10: A suit is maintainable against the owner
Section 11: A suit is not maintainable against the owner.
CONCLUSION:
Keeping in view the above discussion, it is clear that suit u/s 10 can be maintained independent of ownership and is competent even against the true owner whereas no suit is competent u/s 11 against an owner U/s 11 a person entitled to possession may either sue for recovery of possession or in alternatives for compensation in the circumstances stated in Section 11 and in the manner provided in the Code of Civil Procedure