Recovery of possession of movable property (Section 7 & 8)
Section 7
7. Recovery of specific movable property- A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.
Explanation 1- A trustee may sue under this Section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2- A special or temporary right to the present possession of movable property is sufficient to support a suit under this section
Essentials of Section 7
- A person entitled to the possession of movable property
- It must be specific movable property
If above conditions are fulfilled then he may recover it in the manner provided by the Code of Civil Procedure, 1908
1. A person entitled to the possession of movable property
For filing a suit under this Section, the plaintiff must be entitled to the possession of movable property. Significantly, entitled to possession means a right to possession. However this right must be a right to immediate possession like a buyer who has paid price of goods but has not received goods has right to immediate possession. However, an important questions who is entitled to possession of movable property? Significantly, under this Section the following three persons are entitled to the possession of movable property:
(a) Owner of movable property- An owner of movable property has bundle of rights which includes right of possession. Therefore, where owner is wrongfully dispossessed of his movable property he cannot use force to recover possession but must file a suit under this Section in the manner provided by the Code of Civil Procedure, 1908.
Example:- A, an owner of a car is wrongfully dispossessed by B. A cannot use force to recover possession of his car but can file a suit under Section 7.
(b) A person having a special or temporary right to the present possession of movable property; – A person may not be an owner but may have special or temporary right to the present possession of movable property such as agent, bailee and pledgee. If such person is wrongfully dispossessed of that movable property then he cannot use force to recover possession but must file a suit under this Section in the manner provided by the Code of Civil Procedure, 1908.
- Where a person has a special or temporary right with the consent of the owner: In case of Bailment and Pledge a bailee and a pledge has a special or temporary right to the present possession of movable property with the consent of the owner.
Example 1: A pledges certain jewels to B to secure a loan. B is wrongfully dispossessed by C. B has special and temporary right to those jewels hence can file a suit against C to recover possession.
Example 2: A gave his clothes to B, a drycleaner. C wrongfully dispossess B of those clothes then B cannot use force to recover possession but must filed a suit under this Section in the manner provided by the Code of Civil Procedure, 1908. Here B has special and temporary right to the clothes.
- Special or temporary right to the present possession of movable property without the consent of the owner: A person has special or temporary right to have possession of goods without the consent of the owner in involuntary bailment.
- Involuntary Bailment- When bailment is not with the consent of bailee but he gets possession of the goods accidently, or by mistake it is known as involuntary bailment.
Example 1- A forgot his coat in B’s shop. B kept in safe custody to return it to B. B is involuntary Bailee.
- Finder of goods is involuntary bailee- Another example of involuntary bailment is finder of the goods. Where a person finds goods belonging to another person and taken them in his possession then he is a bailee of those goods. Here finder of the goods has special or temporary right to the present possession of movable property without the consent of the owner.
Example: A finds a diamond ring and takes it into his custody. B wrongfully dispossesses A of that ring. A having special right to that ring may sue b.
(c) Trustee- A trustee can also file a suit under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.
Example- A (creator or settler of the trust) enters into a trust contract with B (trustee), where B has been given some moveable property to be used for the benefit of C (beneficiary). The property of B but X wrongfully disposed him. Here B, being trustee can sue X for recovery.
2. It must be specific movable property
Another condition under Section 7 is that property must be specific movable property. i.e., the plaintiff can claim possession of specific movable property. Here specific means determinable or ascertained goods which can be separated, seized or identified from rest of the goods. Significantly this provision does not cover right to recover ‘money’ or crop because these are not specific goods. However, ‘specific rear coins’, foreign currency and bags of grain are covered under this Section.
Example 1- If A is wrongfully dispossessed of money he cannot file suit under this Act but if he is dispossessed of ancient coins not in use he can file a suit under this section.
Example 2- A is wrongfully dispossessed of crop lying in the ground he cannot file suit under this Act but if he is dispossessed of bags of grain which were identifiable he can file a suit under this Section.
- Recovery in a manner prescribed by the Code of Civil Procedure- The possession of the property can be recovered by filing a suit as prescribed by the Code of Civil Procedure, 1908. The plaint should contain particulars in Form 32, Schedule I, Appendix A of the C.P.C. The decree for delivery of possession of specific movable property shall be passed in accordance with Order XX, Rule 10 of the CPC. The decree for delivery of specific movable property shall state the amount of money to pay as an alternative, if the delivery cannot be made.
- Suit can be filed against the owner- It is important to mention that under Section 7, suit can be filed by a person having a special and temporary right of possession against the owner if he (owner) wrongfully dispossesses him.
Example 1- A has given his clothes for dry-cleaning to B. Subsequently A without making payment wrongfully takes possession of clothes. B, bailee can file a suit against A bailor to recover possession.
- No Suit if plaintiff has no right of immediate possession- Under Section 7 suit can be filed by the plaintiff if he is entitled to immediate possession. Therefore, where he is owner but not entitled to immediate possession then no suit shall lie under this Section.
Example- A has pledged his jewellery to B. Subsequently, B sells that jewellery to C before he is entitled to do so. A without making payment, files a suit against C to recover possession. He will not succeed and his suit will be dismissed as he is not entitled to possession.
