Skip to content


Vadami Bai Vs. Shaik HussaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 164 of 1977
Judge
Reported inAIR1980AP14
ActsCode of Civil Procedure (CPC),1908- Order 21, Rule 63; Limitation Act, 1963 - Schedule - Article 98
AppellantVadami Bai
RespondentShaik HussaIn and anr.
Appellant AdvocateP.L. Narasimha Sarma, Adv.
Respondent AdvocateT. Veerabhadrayya, Adv.
Excerpt:
.....such party may institute suit to establish his right which he claims to property in dispute - such suit has to be filed within period of one year from date of final order - section 21 provides that where after institution of suit new plaintiff or defendant is substituted or added suit shall be deemed to have been instituted when he was so made party - omission to implead party should be due to mistake made in good faith - omission to include new plaintiff or defendant was due to good faith - accordingly suit as regard such plaintiff or defendant is deemed to have been instituted on any earlier date thus not barred by limitation. - - 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..........lower court that the sale to the auction purchaser was hit by lis pendents is not correct, for the claim suit is not a continuation of the claim petition and section 52 of the transfer of property act has no application to court sales.4. before we discuss these questions we may add that the question of limitation does not seem to have been argued before the district munsif, for his order does not show it. it was only raised in the appeal before the district judge, guntur.4-a. order 21, rule 58, c.p.c., provides for filing claim petitions. under rule 63, when a claim petition is rejected the party against whom an order is made may institute a suit to establish his right which he claims to the property in dispute, but subject to the result of such suit, the order shall be conclusive. that.....
Judgment:

Gangadhara Rao, J.

1. Sha Nemaji Champalal (1st defendant) obtained an ex parte decree against the deceased Shaik Subhani, the husband of the 3rd defendant and father of defendants 4 to 7 in Small Cause Suit No 729/1965 on the file of the District Munsif's Court, Guntur. In execution of that decree, he brought the plaint schedule house for sale in E. P. No. 568/1969, stating that it belonged to the deceased Sheik Subhani. The plaintiff filed a Claim Petition to 27th June, 1970. Both the petitions were adjourned to 30th June, 1970. On 27th June, 1970, the sale was held and the property was purchased by Vadambi Bai (8th

defendant). On 30th June, 1970 both the claim petition and the adjournment petition were dismissed. Then the plaintiff filed the suit O.S. No. 818/1970 in the Court of the District Munsif. Guntur, on 17th August, 1970 under O. 21, Rule 63, C. P. C. to set aside the order dated 30th June, 1970 in the claim petition. he did not make the auction purchaser a party to that suit. He impleaded only the decree holder and the judgment debtor. On 25th November, 1970 the sale was confirmed. On 21st October, 1971 a petition was filed to implead the auction purchaser as a defendant to the suit, and it was allowed on 7th February 1972, subject to the plea of limitation. In the suit the District Munsif, Guntur, held that the plaintiff had title to 2/7th share in the plaint schedule property. Questioning that order the defendants 1 and 8, that is, the decree holder and the auction purchaser, filed appeal. A. S. No. 29/74 in the Court of the District Judge, Guntur. The learned Judge dismissed the appeal. he held that the suit was a continuation of the claim petition, that the auction purchaser acquired title to the suit property only when the sale was confirmed and, therefore, he was not a necessary party to the suit when it was filed. he also held that the auction purchaser was a transferee pendente lite under Section 52 of the Transfer of Property Act, and since the judgment debtor was already impleaded as a party to the suit, there was no question of any

independent claim against the auction purchaser and hence the suit against him was not barred by limitation. hence this second appeal by the auction purchaser (8th defendant).

2. First, it came up before Muktadar J., for hearing. The learned Judge referred the matter to a Division Bench.

3. In this appeal it is submitted by Sri. P. L. Narasimha Sarma, the learned counsel for the appellant, that the confirmation of sale on 25th November, 1970 relates back to the date of the sale on 27th June, 1970 and, therefore, the auction purchaser got title to the suit property on 27th June, 1970 and, consequently, became a necessary party to the suit, that the judgment debtor cannot represent her because he had been divested of his title and hence the suit as against the auction purchaser is barred by limitation. Secondly, he submitted that the finding of the lower Court that the sale to the auction purchaser was hit by lis pendents is not correct, for the claim suit is not a continuation of the claim petition and Section 52 of the Transfer of Property Act has no application to court sales.

4. Before we discuss these questions we may add that the question of limitation does not seem to have been argued before the District Munsif, for his order does not show it. it was only raised in the appeal before the District Judge, Guntur.

4-A. Order 21, Rule 58, C.P.C., provides for filing claim petitions. Under Rule 63, when a claim petition is rejected the party against whom an order is made may institute a suit to establish his right which he claims to the property in dispute, but subject to the result of such suit, the order shall be conclusive. that suit has to be filed within one year from the date of the final within one year from the date of the final order under Article 98 of the Limitation Act, 1963. Section 21 of that Act provides, that 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. order 1, Rule 10, C.P.C proceedings impleaded proper or necessary parties to the suit.

5. To substantiate his first contention, Sri P. L. Narasimha Sarma, relied upon the decision of the Supreme Court in Janak Raj v. Gurdial Singh, : [1967]2SCR77 . In that case it was held by the Supreme Court that in view of Sec. 65, C.P.C. when the sale is confirmed and the sale certificate is granted, the property shall be deemed to have vested in the purchaser from the time when it was sold and not from the time when the sale became absolute. The result is that the purchaser's title relates back to the date of the sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure, 1908, either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it is found that the decree under which the sale was ordered had been reversed before the confirmation of sale. it does not seem ever to have been doubted that once the sale is confirmed the judgment debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The same result will follow even when the reversal of the decree takes place before the confirmation of the sale.

6. Basing on this decision, it is argued that in this case when the sale was held on 27th June, 1970. the auction purchaser became a necessary party and since the suit was filed by the plaintiff on 17th August, 1970 without impleading the auction purchaser as a party and the auction purchaser as a party and since he was impleaded as a party only on 7th February 1972, the suit against her is barred by limitation, for it was filed after more than one year from the date of the sale. We are not able to agree with this submission. In Janak Raj v. Gurdial Singh (supra), the Supreme Court was not deciding the question of limitation for filing the suit under O. 21, Rule 63, C.P.C. That was a case where the judgment debtor did not apply under Section 89 for setting aside the sale, but applied for setting aside the decree, and after the decree was reversed an application was filed by the auction purchaser under Rule 92 for confirmation of sale. The question was whether the sale must be confirmed notwithstanding the reversal of the decree after the sale. The Supreme Court held that the title of the purchaser related back to the date of and, therefore, the reversal of the decree after sale had no effect. That is different from saying that if the sale is confirmed after the claim suit is filed, the auction purchaser becomes a necessary party to the suit even on the date of the sale. The auction purchaser becomes the owner of the property only when the sale is confirmed. If the said was held,but it was not confirmed before the claim suit was filed, he did not acquire any title to the suit property on the date when the claim suit was filed. At the most he is only a proper party. It is only when the sale was confirmed after the suit was filed he became a necessary party from that date. In the case on hand, when the suit was filed on 17th August, 1970, the suit was filed on 17th August, 1970, the sale was not confirmed. Therefore, the auction purchaser was not a necessary party, but only a proper party. As held by the Supreme Court in Devi Das v. Shrishailappa, : [1961]3SCR896 failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of S. 22 of the Indian Limitation Act. The rule joined as a plaintiff to the suit and is not made party will entail dismissal of the suit, if the suit as regards him be barred by limitation when he joined, has no application to non joinder of proper parties.

7. The Patna High Court held in Kunj Behari v. Bendudhar panda (AIr 1942 Pat 185 (2) ), that limitation bars a suit where the right to sue had already accrued before the suit. But where a suit has already been fought in time and right to sue some other persons accrues during the pendency of the suit, the same question is one of impleading parties who are affected by the doctrine of lis pendens.

7-A. Under Order 1, Rule 10, C.P.C. the Court can implead a proper or necessary party to the suit at any stage of the proceedings. We, therefore, reject this contention.

7-B. In this case the sale was confirmed on 25th November, 1970, and a petition was filed to implead the auction purchaser on 21st October, 1971, and it was allowed on 7th February, 1972. Thus, the petition to implead her was filed within one year from the date of the confirmation of sale. the fact that it was allowed after more than one year will not make any difference. As held by the Madras High Court in Port of Madras v. Good Year India Ltd., (1973) 1 Mad Lj 296, Section 22 of the Limitation Act must be construed as meaning that the date of the application should be taken as the date when the new party was impleaded.

Therefore, the auction purchaser must be deemed to have been added as a party on the date when the application was made. Apart from that, proviso to Section 21 of the Limitation Act, 1963, says 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. There can be no doubt that in the present case, the auction purchaser was not made a defendant to the suit because of the decisions of the Madras High Court, stating that the

auction purchaser is only a representative of the judgment debtor. Further, bv the date of the suit, the sale was not confirmed. Therefore it is a mistake made in good faith. Consequently, we can also hold that the suit should be deemed to have been instituted as against the auction purchaser even on the date when the suit was filed.

8. With regard to the contention that the claim suit is not a continuation of the claim petition and, therefore, the sale in favour of auction purchaser is not hit by lis pendens under section 52 of the Transfer of Property Act, Sri P. L. Narasimha Sarma, the learned counsel for the appellant strongly relied upon the decision of the Supreme Court in Sawai Singhai v. Union of India, AIr decision of the Madras High court in Krishnappa v. Abdul Khader, AIR 1915 Mad 495 (2) is no longer good law. We find great force in this contention.

9. In Krishnappa v. Abdul Khader, AIr 1915 Mad 495 (2), a Division Bench of the Madras High Court held, that a suit under Order 21, Rule 63 C.P.C. is a continuation of the proceedings in the claim petition, and as such, all alienations during the continuance of the proceedings are alienations pendente lite and are affected by the doctrine of lis pendens, under Section 52 of the Transfer of Property Act, and as such, the alienee is not a necessary party to the claim suit. Therefore, he cannot advance the plea of limitation under Section 22 of the Limitation Act (which is same as Section 21 of the present Limitation Act.)

The learned Judges came to this conclusion primarily relying upon the observations of the Privy Council in Phul Kumari v. Ghanshyam Misra (1908) ILR 35 Cal 202.

10. But, in Sawai Singhai v. Union of India (supra) Gajendragadhkar, C.J. speaking for the Supreme Court observed that the scope of the suit under O. 21, Rule 63 is different from and wider than that of investigation under Order 21.

Rule 58 and, in fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21, Rule 63 and, therefore, it could not be said that such a suit is outside the purview of (sic) the Privy Council in Phul Kumari v. Ghanshyam Misra. (1908) ILR 35 Cal 202 the learned Judge observed:

'It would we think, be unreasonable to extend the said observation to the present case and treat them as enunciating a proposition of law that for all purposes, a suit brought under O. 21, R. 63 is either a continuation of the objection proceedings, or is a form of an appeal against the order passed in them. In our opinion this extension is not justified because the Privy Council could not have intended to lay down such a broad proposition. Therefore, the argument that the present suit is outside the purview of S. 80 of the Code because it is a continuation of the attachment proceedings must be rejected.'

We think it necessary to decide this question in the view we have taken that the present suit against the auction purchaser is not barred by limitation in the circumstances of the case.

11. In the result, we confirm the judgments of both the lower courts and dismiss this appeal, but in the circumstances of the case without costs.

12. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //