Somnath Iyer, J.
(1) This appeal arises out of a suit brought by the plaintiff for a declaration that a sale deed executed by him, his son and his nephew (defendant 3) on June 5, 1943, in favour of defendants 1 and 2 was void, and for possession of the two lands conveyed under that sale deed.
(2) The Court below made a decree that the sale of one of the two lands was void and that the sale of the other, was not. So it made a decree for possession only of that land which was declared to be void, and dismissed the suit in respect of the other.
(3) Defendants 1and 2 are the appellants before us and challenge the decree made by the Civil Judge in favour of the plaintiff. The plaintiff has filed a cross-objection to that part of the decree by which the Civil Judge dismissed the suit with respect to the other land.
(4) The material facts are these:
In the year 1925 the plaintiff and his brother, who is the father of defendant 3, created a simple mortgage in favour of defendants 1 and 2 for a sum of Rs. 3,000/- and mortgaged as security for the repayment of the debt, five lands bearing Survey Nos. 569/1, 599/3, 609/2, 610/2 and 610/4. On the mortgagors neglecting to pay the amount of mortgage, the mortgages brought a suit for the recovery of the amount in Civil suit No. 77 of 1934, in which there was a decree directing the payment of the mortgage amount in annual instalments of Rs. 600/-, and the sale of the mortgaged properties in default of such payment.
(5) When there was a failure on the part of the judgment-debtors to pay the amount of mortgage as directed, the decree holders sought execution of the decree in Darkhast No. 438/1939, in which an order was made by the executing Court on August 15,1939, which reads :
'Sale of property ordered to Collector for sale. S. Nos. 610/2 and 610/4 should be sold first and if the sale proceeds are found to be short, then only 599/3 is to be sold.'
(6) Before the properties were actually sold, although a sale proclamation for that purpose had been issued, there was a private sale made by the plaintiff, his son and his nephew (defendant 3) in favour of defendants 1 and 2, of two items of lands for a sum of Rs. 8,600/-. The properties that were sold under the sale deed Ex-39 are lands bearing S. Nos. 599/3 and 609/2.
(7) On October 20, 1956, the suit, out of which this appeal arises was instituted by the plaintiff who is now dead and whose legal representative has been substituted in his place. He sought a declaration that the sale made by him, his son and his nephew was a void sale since it offended against the provisions of paragraph 11 of Schedule III to the Code of Civil Procedure. His contention was that since by the order made by the executing Court in Darkhast No. 438/39, the Collector had been invested with power under section 68 of the Code of Civil Procedure to sell the mortgaged properties, it was no longer possible for the plaintiff to make a private alienation of the properties to the decree-holders and that the alienation made in contravention of the provisions of the paragraph 11 of Schedule III to the Code of Civil Procedure was void.
(8) This suit was resisted by the defendants 1 and 2 on more than one ground. It was urged that since the Court did not direct a sale of both the properties which were alienated in favour of defendants 1 and 2 and the property bearing survey No. 609/2 was not directed to be sold and the Collector had not acquired power to sell it, the alienation, so far as it concerned survey No. 609/2 was perfectly valid alienation.
(9) It was next urged that the suit brought more that twelve years after the sale and after delivery of possession by the vendors to defendants 1 and 2, was barred by limitation.
(10) It was lastly urged that the decree which the plaintiff could seek could only be a conditional decree directing him to restore the benefit which he received from defendants 1 and 2 under the sale deed in the form of the consideration paid for the sale.
(11) The Civil Judge acceded to the contention of defendants 1 and 2 that the sale of Survey No. 609/2 was not affected by paragraph 11 of Schedule III to the Code of Civil Procedure. He was however, of the view that the sale of survey No. 599/3, after the executing Court had directed its sale through the Collector, was void. He accordingly made a decree only in respect of survey No. 599/3, but dismissed the suit in respect of Survey No. 609/2. By his decree, the Civil Judge declared that the sale of survey No. 599/3 was void and made a decree for delivery of possession of that land. He also directed payment of future mesne profits.
(12) While defendants 1 and 2 in the appeal before us assail the decree declaring the sale of survey No. 599/3 to be void, the plaintiff has taken a cross-objection to that part of the decree which concerns Survey No. 609/2.
(13) On behalf of defendants 1and 2 who challenge the decree made by the Civil Judge against them, Mr. Albal has made three submissions before us.
(14) The first is that the Collector had not acquired power to sell survey No. 599/3 and that paragraph 11 of Schedule III to the Code of Civil Procedure did not prohibit the alienation made by the plaintiff.
(15) The second is that the plaintiff's suit was barred by limitation. And the last is that the Civil Judge should have imposed terms on the plaintiff.
(16) In respect of the first submission that the alienation of survey No. 599/3 was permissible, Mr. Albal urged that the order of the executing Court made on August 15, 1939, under the provisions of S. 68 of the Code of Civil Procedure, which since stands repealed, authorised the Collector to sell Survey No. 599/3 only in the event of the sale of Survey Nos. 610/2 and 610/4, resulting in a deficiency. The argument maintained was that until there was a deficiency which came into being after the sale of Survey Nos. 610/2 and 610/4, there was no power in the Collector to sell Survey No. 599/3 Mr. Albal proceeded to state that since by the time the alienation was made by the plaintiff no properties had yet been sold, the question whether there would be a deficiency or not, was a problematical question. And that being so, it was submitted that paragraph 11 of Schedule III to the Code of Civil Procedure did not prohibit the alienation of Survey No. 599/3.
(17) It does not appear to me that we should accede to this contention.
(18) Paragraph 11 prohibits an alienation so long as the Collector can exercise or perform in respect of the judgment debtor's immoveable property, or any part thereof, any of the powers or duties conferred or imposed on him by paragraphs 1 to 10.
(19) One of the powers conferred by paragraphs 1 to 10 is the power to sell the immoveable property of a judgment-debtor if authorised by an order made under S. 68 of the Code of Civil Procedure. That being so, it is clear that if the Collector could sell the property of the judgment debtors in the case before us pursuant to an order made under S. 68 of the Code of Civil Procedure, as long as that power could be exercised by the Collector, so long would an alienation by the judgment-debtors be impermissible.
(20) Mr. Albal who does not contest the correctness of this postulate, however, submitted that since Survey No. 599/3 was directed to be sold only after the sale of Survey Nos. 610/2 and 610/4 and only if the sales of those two lands had not yet been sold and no deficiency had arisen, it was not correct to say that the Collector had acquired the power to exercise or perform any of the powers or duties conferred or imposed by paragraphs 1 to 10 in respect of Survey No. 599/3. It was urged that the occasion or the exercise or performance of any one of the duties in respect of Survey No. 599/3 would arise only after the sale of the other two lands, provided that sale brought into being a deficiency.
(21) This argument overlooks the fact that the power to sell the judgment-debtors' property with which the Collector was invested, devolved on the Collector immediately the executing Court made its order under S. 68 of the Code of Civil Procedure on August 15, 1939. When that order directed the sequence in which the properties should be sold, it stated that two lands should be sold first and the third land, next. It is true that the third land could not be sold by the Collector if the sale of the other two lands satisfied the decree. But what cannot be doubted is that notwithstanding the fact that there was a possibility of the sale of the first two lands satisfying the decree, the power to sell Survey No. 599/3 was conferred on the Collector when the executing Court made its order, and the vesting of that authority in the Collector did not stand postponed or deferred until the Collector sold the other two lands in the first instance.
(22) The expression 'So long as the Collector can exercise or perform', with which paragraph 11 opens, has reference to a period of time which commences when the executing Court makes an order under S. 68, and expires when the Collector implements that order. So understood, the period of time during which the Collector could exercise the power had two terminii; the first of them was, the date of the order of the executing Court, and the second was, the date on which the Collector completed the sale authorised by the order of the Court. It may be that, if the sale of the two lands which had to be held in the first instance satisfied the decree, the power of the Collector to sell the third land would come to an end. But the fact that that power so perishes, does not mean that the power did not vest in the Collector by the order made by the executing Court.
(23) In that view of the matter, it cannot be doubted that during the period between the date of the order made by the executing Court under S. 68 of the Code of Civil Procedure, and the date on which the Collector completes the sale authorised by that order, the Collector is invested with the authority to make a sale of the judgment-debtors' properties in whatever order that sale has to be conducted under the provisions of the Code of Civil Procedure.
(24) Any other view might lead to extremely inconvenient results. If the argument of Mr. Albal is accepted, it will lead to the result that there was no impediment to the sale by the judgment-debtor of Survey No. 599/3, and that that sale could be made until Survey Nos. 610/2 and 610/4 were sold. That view cannot be sound since in the event of the sale of Survey Nos. 610/2 and 610/4 resulting in a deficiency, it would no longer be possible for the Collector to sell Survey No. 599/3 since that property would have disappeared by the antecedent sale. An argument, the acceptance of which results in such consequence, and which would defeat the very purpose, of paragraph 11 of Schedule III to the Code of Civil Procedure should not, in my opinion, commend itself to us.
(25) In my opinion, the Civil Judge was right in coming to the conclusion that, notwithstanding the form of the order made by the executing Court on August 15, 1939, it was as impermissible for the plaintiff to sell Survey No. 599/3 as it was for him to make an alienation of Survey Nos. 610/2 and 610/4.
(26) But Mr. Albal urged that the Civil Judge should have held that the suit was barred by limitation. The argument advanced before us was that defendants 1 and 2 were delivered possession of the alienated properties on June 5, 1943, and that the suit brought on October 20, 1956, more than twelve years after such delivery of possession, was plainly time-barred.
(27) In repelling this contention, the Civil Judge pointed out that a period of nearly ten years had to be excluded from the period between the sale and the date of the suit under the provisions of Section 14 of the Limitation Act. He pointed out that on October 20, 1945, Ex. 45, an application under the provisions of the Bombay Agricultural Debtors Relief Act was made to the Bombay Agricultural Debtors Relief Court by the plaintiff for the adjustment of his debts. The Civil Judge pointed out that the prayer of the plaintiff in that application included a prayer to the effect that there should be a declaration that the sale deed executed by him and his son and nephew on June 5, 1943, was really a mortgage deed and, in the alternative, a declaration that that sale transaction was void. Although in one Court, the plaintiff succeeded in obtaining a declaration that the sale deed really recorded a mortgage transaction, that declaration was set aside by the appellate Court on the ground that the Bombay Agricultural Debtors Relief Court had no jurisdiction to make the declaration. The matter was taken up to the High Court of Bombay, whose decision in that matter was rendered in C.R.A. 130/53 on September 22, 1955.
(28) The Civil Judge was of the view that the period between October 20, 1945, when the petition was presented to the Bombay Agricultural Debtors Relief Court, and September 22, 1955 when there was a final adjudication by the High Court of Bombay, should be excluded while considering the plea of limitation advanced by defendants 1 and 2 under the provisions of section 14 of the Limitation Act.
(29) Mr. Albal does not dispute that if the period is so excluded, the plaintiff's suit would well be within time. I have no doubt in my mind that the view taken by the Civil Judge that that period should be excluded, can be open to very little objection.
(30) It is clear from the proceedings before the Bombay Agricultural Debtors Relief Court that the plaintiff sought from the Bombay Agricultural Debtors Relief Court a declaration that the sale deed executed by him was a void sale. There can be no doubt that he prosecuted that application in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, was unable to entertain it. If the matter was pursued until it was taken to the High Court which rendered its final adjudication on September 22, 1955, the provisions of section 14 of the Limitation Act became plainly attracted and the period spent by the plaintiff in the proceedings started under the Bombay Agricultural Debtors Relief Act was rightly held by the Civil Judge to be a period of limitation under section 14 of the Limitation Act.
(31) Mr. Albal, however, urged that, even if we affirm the view taken by the Civil Judge, for the reasons stated above, that the sale of survey No. 599/3 was void, there should be a direction to the plaintiff for the restoration of that part of the consideration attributable to survey No. 599/3. before considering this argument, it would be convenient to dispose of the cross-objection taken by the plaintiff to that part of the decree which relates to survey No. 609/2.
(32) It is clear that this cross-objection has no substance. There was no order made by the executing Court that survey No. 609/2 should be sold by the Collector. It should also be observed that there was no prayer by the decree-holder for the sale of survey No. 609/2 in the application presented by him. So it is clear that this is not a case in which the Collector had acquired power to sell survey No. 609/2 under any of the paragraphs of schedule III to the Code of Civil Procedure. In my opinion, the Civil Judge was, therefore, right in refusing to declare the sale of survey No. 609/2 to be void. The cross-objection, in my opinion, should, therefore, be dismissed.
(33) It is in this situation that we must consider the request made by Mr. Albal for the incorporation of a condition in the decree that the plaintiff should restore a part of the consideration by reason of he adjudication that the sale of survey No. 599/3 is a void sale.
(34) Mr. Mandagi, appearing for the plaintiff, does not dispute that from the declaration which the plaintiff has obtained that that sale is a void sale, emanates a right in defendants 1 and 2 for the restoration of the corresponding benefit which they have received in the form of consideration paid for that sale. But a slight difficulty arises by reason of the fact that the sale of one land has been held to be valid and the sale of other, not. Survey No. 599/3 whose sale is declared to be void, measures two acres and six guntas, assessed at Rs. 4-13.0, while survey No. 609/2 whose sale has been held to be valid, measure 3 ac. 13 guntas, assessed at Rs. 6-9-0. It is thus seen that the land whole sale has been held to be valid is 11/2 times as valuable as the land whose sale has been held to be void. So, the extent to which the plaintiff is bound to restore to defendants 1 and 2 the benefit which he has received under that sale is two-fifths of the total consideration paid by defendants 1 and 2 to him. Since the consideration paid is Rs. 8,600/-, two fifths of that consideration will be Rs. 3,440/- which will be the amount which we must direct the plaintiff to pay before he could recover survey No. 599/3 from defendants 1 and 2.
(35) But we have been informed by the learned advocates appearing before us that this survey No. 599/3 has already been delivered to the plaintiff and defendant 3 as directed by the decree and the fact that such delivery has taken place will require a slight alteration in the form of the decree to be made.
(36) Mr. Mandagi urges that if we should direct the payment of that sum of money by the plaintiff to defendants 1 and 2, defendants 1 and 2 should be called upon to account for the mesne profits during the period defendants 1 and 2 were in possession thereof. But it should not be forgotten that while the plaintiff could claim mesne profits in that way, defendants 1 and 2 are entitled to claim interest on that part of the consideration attributable to survey No. 599/3. It seems to me that it is not necessary for us to direct defendants 1 and 2 to account for the mesne profits or to direct the plaintiff to pay any interest on the sum of money which the plaintiff and defendant 2 are liable to pay to defendants 1 and 2.
(37) What, in my opinion, we should do, is to affirm the decree of the Civil Judge with a slight modification that the plaintiff and defendant 3 should pay defendants 1and 2 a sum of Rs. 3,440/- which represents the consideration attributable to survey No. 599/3 which plaintiff and defendants 3 are bound to restore to defendants 1 and 2. A direction to that effect will be incorporated in the decree made by the Civil Judge.
(38) In respect of this sum of Rs. 3,440/-, there shall be a charge on survey No. 599/3 in favour of defendants 1 and 2 for its recovery, and this sum of money shall carry interest at 4% per annum from 8-1-1959 on which date possession was delivered of survey No. 599/3 by defendants 1 and 2 to the plaintiff and defendant 3.
(40) With these modifications which shall be made in the decree of the Civil Judge, the appeal and the cross objection are both dismissed.
(41) In the circumstances, there will be no direction as to costs.
(42) I agree.
( 43) Order accordingly.