(1) The appeal and the cross objections pertain to the judgment of the Subordinate Judge, Kavali, in O. S. 24 of 1958. That was a suit filed on 30-6-1958 for the recovery of mesne profits of land purchased in Court auction, an extent of ac. 7-50 cents in S. No. 215/7 of Vaviletipadu village for Faslis 1362 to 1367.
(2) The undisputed facts were that the plaintiff was the court auction purchaser in execution of the decree in O. S. No. 122 of 1947 on the file of the Sub-Court, Nellore, against defendants 3 and 4 and their late father Sreeramulu, Sreeramulu having died his L. Rs., viz., his widow and his married daughter are impleaded in this suit as defendants 1 and 2. The Court sale was on 15-12-1952 and the plaintiff became the purchaser of the land of the judgment-debtors for Rs. 6,000. The judgment-debtors applied to set aside the sale under O. 21, R. 90, C. P. C. The said petition was dismissed by the Sub-Court, Nellore, on 18-1-1954. Consequently, the Sub-Court confirmed the sale on 21-1-1954 and granted a sale certificate on 21-2-1954, Ex. A-1. The judgment-debtors carried the matter in appeal in C. M. A. 110 of 1954 to the High Court. Therein they obtained an order for stay of delivery of possession of the land purchased by the court auction purchaser. The appeal was ultimately dismissed by the High Court on 18-2-1958 and the stay was vacated. The court auction purchaser, therefore, laid the suit for recovery of profits for the period stated. He claimed an amount of Rs. 7,762-50 nP. as profits.
(3) The defences to the suit were, firstly that mesne profits could be recovered only for 3 years prior to the suit and the rest of the claim was time barred, and secondly that the amount claimed as and for mesne profits was excessive. The lands were leased on a rental of Rs. 130 per year in 1942 for a period of 10 years to one Narasimham. The suit lands were not cultivated every year. The crop was poor. The maximum income which the defendants could realise was Rs. 130 to Rs. 150 after deducting the cultivation expenses. After 1363 Fasil the defendants leased the property to one Kondaiah, a tenant, for a rent of Rs. 100 per year and so the amount of mesne profits claimed was excessive.
(4) The learned Subordinate Judge rejected the plea that profits could not be claimed for more than 3 years prior to suit and held that the plaintiff was entitled to claim profits for the entire period under Art. 120 of the Limitation Act. On the second plea he relied on the cultivation accounts produced by the plaintiff for each of the years for ascertaining the crops which the lands yielded, and computed their values according to the plaintiff's witnesses and decreed a sum of Rs. 5,100 for profits and Rs. 736-89 towards interest. He, therefore, passed a decree for Rs. 5,836-89 for mesne profits with subsequent interest on Rs. 5,100 at 6 per cent per annum till date of payment and for proportionate costs.
(5) Against this judgment, the appeal has been prefered by the 4th defendant only. The plaintiff preferred cross-objections for the amount disallowed by the learned Subordinate Judge.
(6) The main point urged in appeal is that Art. 109 of the Limitation Act applies, in which case the plaintiff could not recover profits for more than 3 years prior to suit. For the respondent-plaintiff it is contended that the said Article is inapplicable, that the right to sue for the entire period from the date of the court sale to the date of confirmation of the sale accrued to the court auction purchaser on the confirmation of the sale and that under Art. 120 of the Limitation Act the suit laid by the court suction purchaser on 30-6-1958 was in time.
(7) There is no controversy over the facts as stated in the earlier part of this judgment.
(8) Sri Krishnamurthy has submitted that though the executing Court confirmed the sale on 21-1-1954 and under O. 21, R. 92, C. P. C. the sale shall become absolute, yet, inasmuch as the appeal C. M. A. No. 110 of 1954 was disposed of only on 18-2-1958, that was the date when the sale could in law be said to have become absolute. He has also submitted that it is on that date that his right to sue for profits would accrue under Art. 120 of the Indian Limitation Act.
(9) For the first limb of his argument, he relied on Chandra Mani Saha v. Anarjan Bibi, 67 Mad LJ 79: (AIR 1934 PC 134). In that case after considering the provisions of O. 21, R. 92, C. P. C. it is stated thus (at p. 83 of Mad LJ): (at p. 136 of AIR):
'But the judgment-debtors had a right of appeal under O. 43, R. (1) (j) against the orders of the Subordinate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment-debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of S. 107 (2) of the Code, had the same powers as the Court of the Subordinate Judge.
In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute.'
Later at p. 84 (of Mad LJ): (at p. 136 of AIR) it was observed thus:
'Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words 'when the sale becomes absolute' in Art. 180 of the Limitation Act, regard must be had not only to the provisions of O. 21, R. 92 (1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under O. 21, R. 92 (1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180 of the Limitation Act until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.'
(10) True it is that their Lordships made these observations in the context of the sale becoming absolute under Art. 180 of the Limitation Act. But there can be no doubt that the order of the learned Subordinate Judge pending the appeal could not be final as the whole question was thrown open before the appellate Court. So it has to be said that the sale became absolute only on the dismissal of the appeal by the judgment-debtors on 18-2-1958 and the right to sue accrued only on that date.
(11) For the second part of his argument he relied on a Bench decision of the Madras High Court: Radhakrishna Chettiar v. Ramaswami Ayyar, 1954-2 Mad LJ 610. In that case the facts are similar. There was an auction sale on 19-9-1935. But, due to the pendency of various proceedings subsequent to the sale, the order confirming the sale was passed on 21-12-1943. The suit was laid on 26-11-1946 for the recovery of profits from the date of the sale, that is from 19-9-1935. The defendants raised the question of limitation, and it was argued that Art. 109 applied to the case and the suit was barred except in respect of profits which accrued within three years before suit. The Bench ruled out the application of Art. 109. They observed at p. 613 thus:
'The position of a purchaser at a Court auction in execution, whether it be the decree-holder himself or a stranger, between the date of sale and the date of confirmation of sale, has been discussed in several decisions. In Arunachala v. Vadla Koundan, : AIR1952Mad871 , Satyanarayana Rao, J., if we may say so with respect, correctly described it thus:
'The position of a purchaser after the sale and before the confirmation is that he has only a sort of inchoate interest, which might become a vested interest in the property after confirmation . . . . . . . . It has been established by decisions that before confirmation the judgment-debtor's interest in the property could be i.e., his interest is not defeated and does not become vested in the auction purchaser until there is a confirmation order. The confirmation order, therefore, has got a double operation of divesting the judgment-debtor of his title in the property and vesting it retrospectively in the auction purchaser, to take effect from the date of the sale.'
An auction purchaser has a right of possession not from the date of sale but from the date of the confirmation of the sale because he can only get into possession after a sale certificate has been issued as provided by O. 21, R. 94 and not a moment earlier. Bhankumar Chand v. Lachmi Kant, ILR 22 Pat 280: AIR 1943 Pat 320. That is why Art. 138 prescribes the starting point for a suit for possession by a purchaser at a sale in execution of a decree as 'the date when the sale becomes absolute'. The corresponding article for an application for delivery of possession by a purchaser of immoveable property at a sale in execution of a decree, namely, Art. 180, also prescribes the starting point as the date when the sale becomes absolute. It follows as the result of this position of an auction purchaser that the payment of rent by the lessee of the property to the judgment-debtor after the sale and before the date of confirmation of the sale is quite proper, in spite of the fact that S. 65, Civil Procedure Code, provides for a notional relation back so far as vesting of the title is concerned. Kondaya Nayakar v. Ramaswami Naicker, AIR 1938 Mad 317. That the property even after sale but before confirmation must be deemed to be the property of the judgment-debtor is also evident from the decision of the Supreme Court in Ramakrishna Rao v. Chellayamma, AIR 1953 SC 425'.
And later at p. 615 thus:
'In the present case, during the period between the date of the Court sale and the date of the confirmation of the sale, the only person who was entitled to be in possession of the property sold and who was entitled to enjoy or to collect the rents and profits from the property was the judgment-debtor. Till the date of confirmation, the auction purchaser could not have sustained a suit either for possession of for mesne profits. Till that date, he had only an inchoate right. But in the case of a sale pending confirmation, the possession of the judgment-debtor before the confirmation is not wrongful because before the date the auction purchaser himself would not be entitled to possession . . . . We hold that in the present case, there is not wrongful receipt of the rents and profits by the defendants at any time before the date of the confirmation of sale, and, therefore, Art. 109 would have no application.
If Art. 109 does not apply, it is common ground that Art. 120 would apply, which gives a period of a six years from the date when the right to sue accrues . . . . . . In the case before us, the right to sue accrued to the plaintiff only on the date of the confirmation of sale.'
This decision having been rendered on 18-12-1953 is binding on me as per the decision of the Full Bench of this Court in Subbarayudu v. State of Andhra, : AIR1955AP87 (FB)). I cannot, therefore, accept the contention advanced before me that Art. 109 applies. So, the point taken before me in appeal fails.
(12) The next point addressed to me by the appellant relates to the quantum of mesne profits. That point was also raised in cross-objections. The learned counsel for the appellant Sri Venkatamanaiah argued that the case of the defendants that the land was leased during the relevant years could be accepted.
(13) Exhibit B-2, dated 7-7-1942 is a certified copy of the registered lease for a period of 10 years from 1942 stipulating a rent of Rs. 130 per year. D. W. 2 stated that the lessees had given up the land after 7 or 8 years. So this lease does not show that during the relevant Faslis 1362 to 1367 the land had been demised for the rent stipulated.
(14) The second lease set up in the written statement in favour of one Kondaiah on a rent of Rs. 100 per year has not been filed. The lessee also has not been examined. In such a situation I cannot but say that the learned Subordinate Judge was right in rejecting that during the relevant years for which mesne profits were claimed, the defendants had only leased the land and had not personally cultivated the land.
(15) That would take me on to the question of the crops raised on the lands during the relevant years. D. W. 1 is the Karnam. He has deposed with reference to the Adangals. He could not say who cultivated the land; but he could say that Sajja, Jonna, Red Gram, Pillipesara, Causurina and Tobacco were raised on the lands. D. W. 2 stated about the yield of Sajja, Jonna, Chillies and Tobacco. The 4th defendant-appellant is D. W. 3. He stated that the defendants were in possession of the land in Faslis 1362 and 1363. He deposed that Jonna, Sajja, Pillipesra and Tobacco were raised in portions of the land. D. W. 4 deposed likewise.
(16) P. W. 1 is the plaintiff. He produced certified copies of cultivation accounts, Exs. A-4 to A-7 for Faslis 1362 to 1365, respectively. He also estimated the quantities of Sajja, Jonna, Tobacco, Chillies and Variga Which could be raised in acre. P. W. 2 lives near the suit lands and deposed that the said crops Sajja, Jonna, Chhillies, Variga and Tobacco were raised on the suit lands, P. Ws. 3 and 4 stated likewise.
(17) P. Ws. 5 and 6 produced account books showing the values of those crops, Exs. A-9 to A-14. The cultivation accounts for Faslis 1366 and 1367, Exs. B-3 and B-4 were produced by the Karnam, D. W. 1.
(18) The learned Subordinate Judge has considered these cultivation accounts and the oral evidence and carefully tabulated the various crops and the values of such crops in the relevant years, in Para. 58 of his judgment. He has also considered the Variga crop said to have been grown in Fasli 1362 and did not take into account the Pillipesra crop as a fodder crop.
(19) The learned counsel Sri Krishnamurthy has taken me through the evidence oral and documentary. But when he came to the tabulation in Para. 58 of the judgment, he could not say how it is defective or unreasonable and what acceptable evidence was ignored. The learned Subordinate Judge has evaluated the crops on the basis of accounts produced by P. Ws. 5 and 6 and he could, therefore, have no grievance in regard to the values. The learned Subordinate Judge evaluated the crops as per the values given by the plaintiff and arrived at the net income after deducting 25 per cent thereof for cultivation expenses. He has tabulated the gross income and the net income Fasliwise in Para. 59 of his judgment. No arguments are addressed to be disputing the correctness of these figures. It appears to me that the learned Subrodinate Judge has spared no pains or labour in evaluating the crops and arriving at the income with reasonable certainty. I have also said that the defendants' case of the lease of the lands could not be accepted.
(20) Substantially the plaintiff's case was accepted. In regard to the assessment of income, his values were adopted. The mesne profits could only be ascertained approximately and not accurately. I am unable to see any case for interference in this regard. The learned Subrodinate Judge has made a correct approach to the question and accepted the evidence with reference to the cultivation expenses. The learned Subordinate Judge also awarded interest on profits at 6 per cent per annum.
(21) In the circumstances, I affirm the decree of the learned Subordinate Judge in regard to the profits as well.
(22) No other points are raised before me.
(23) The appeal fails and is dismissed with costs. The cross-objections fail and they are dismissed with costs.
(24) Appeal dismissed.