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Ram Krishna Kapoor Vs. Behari Lal Ram Sahai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 226 of 1961
Judge
Reported inAIR1963All44
ActsLimitation Act, 1908 - Schedule - Articles 109 and 120; Code of Civil Procedure (CPC) , 1908 - Sections 65
AppellantRam Krishna Kapoor
RespondentBehari Lal Ram Sahai and anr.
Appellant AdvocateS.N. Kacker, Adv.
Respondent AdvocateKamta Nath Sett, Adv.
DispositionRevision partly allowed
Excerpt:
.....employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - section radhakrishna chettiar's case ilr (1954) mad 1213. in the case of radhakrishna chettiar ilr (1954) mad 1213 (supra) all the earier authorities have been considered and the division bench which decided that case after considering the rights of the auction purchaser, the rights of the judgment-debtor to remain in possession from the date of the sale till the date of the confirmation as well as the fact that the right to realise the rent accrued in favour of the auction purchaser from the date of the confirmation of the sale took the view, that to such a case the proper article applicable was..........filed by the plaintiff arises out of a suit for recovery of arrears of rent. the plaintiff is the auction purchaser of the house. the sale, took place as against defendant no, 2 who was the judgment-debtor on 16th september 1955. this sale was confirmed on 29th may 1957. during ail these years defendant no. 1 has remained in possession of the house as tenant at a rent of rs. 55/- per mensem. the courts below have found that defendant no. 1 was liable only for a sum of rs. 110/- because he had paid a sum of rs. 825/- to defendant no. 2, rs. 19578/- to the income-tax department and rs. 82/8/- to municipal board and all these payments were bona fide payments. the suit was decreed against defendant no. 2 for a sum of rs. 632/8/-only as the rent of the period prior to three years of the.....
Judgment:
ORDER

Mithan Lal, J.

1. This civil revision filed by the plaintiff arises out of a suit for recovery of arrears of rent. The plaintiff is the auction purchaser of the house. The sale, took place as against defendant No, 2 who was the judgment-debtor on 16th September 1955. This sale was confirmed on 29th May 1957. During ail these years defendant No. 1 has remained in possession of the house as tenant at a rent of Rs. 55/- per mensem. The courts below have found that defendant No. 1 was liable only for a sum of Rs. 110/- because he had paid a sum of Rs. 825/- to defendant No. 2, Rs. 19578/- to the Income-tax Department and Rs. 82/8/- to Municipal Board and all these payments were bona fide payments. The suit was decreed against defendant No. 2 for a sum of Rs. 632/8/-only as the rent of the period prior to three years of the impleadment of defendant No. 2, that is, prior to 11th May 1956 was barred by limitation, it is against this finding that the present revision has been filed.

2. It has been contended by the learned counsel for the petitioner that the courts below have committed a mistake in applying three years rule of limitation, probably under Article 109 of the Limitation Act, though the suit was governed by Article 120. His contention is that till the date of confirmation of the sale the person who was entitled to remain in possession of the property and to collect rents and profits from the tenants, was the judgment-debtor and the right of the auction purchaser was only an inchoate right on the basis of which a suit for possession or profit could not be filed. The right to sue for profits between the date of the sale and the date of confirmation accrued infavour of the auction purchaser only after the confirmation of the sale and as defendant No. 2 was impleaded within two years of the date of confirmation the plaintiff was entitled to a decree for the whole of the period.

3. In this case defendant No. 2 has remained unrepresented. Sri K. N. Seth has appeared on behalf of defendant No. 1 only. The point which requires determination in this case is as to whether the suit is governed by Article 109 or by Article 120 of the Limitation Act.

4. Article 109 of the Limitation Act lays down three years rule of limitation for recovery of profits in immoveable property belonging to the plaintiff which have been wrongfully received by the defendant and the starting point of limitation is given when the profits are received. The question is whether the realisation of the rent by defendant No. 2 from the date of the sale till the date of the confirmation of the sale can be said to be wrongful.

5. Learned counsel for the petitioners has himself been very fair and has placed before the Court all the important cases dealing with this point and they are : Feroz Shah v. Mohammad Akbar Khan , Ram Charan v. Bansidhar, AIR 1942 AH 358, Sarat Kamini Dasi v. Nagendra Nath Pal, 29 Cal WN 973: (AIR 1926 Cal 65), Gorakhpur Electric Supply Co. Ltd. v. R. E. Nariman and Co. : AIR1948All75 and T. Section Radhakrishna Chettiar v. A. R. Ramaswami Ayyar ILR (1954) Mad 1213,

6. The case of Feroz Shah (Supra) is not a case of auction purchaser. That was a suit fried by a mortgagee against a third party claiming value of the crops as damages from 1927 to 1938. The suit was filed in 1933 after a suit for declaration ant possession had been decreed. It was held by their Lordships that the suit was governed by Article 109 and not by Article 120 of the Limitation Act. This case does not deal with the rights of the auction purchaser nor does it deal with the effect of Section 65, C. P. C., nor does it deal with the point as to whether for the period between the date of the sale and the date of confirmation the auction purchaser became entitled to recover profits. This authority, therefore, cannot have any application to the present case.

7. The case of Ram Charan AIR 1942 All 358 (Supra) was a suit in which a decree-holder got the property of a person other than his judgment-debtor sold in execution of his decree and then obtained possession. The rightful owner brought a suit. It was held that the suit was governed by Article 109 and not Article 120 of the Limitation Act. The facts of this case are again distinguishable. That case, did not consider the question of the right ot the auction purchaser or the date from which the right to recover mesne profits of the property accrued in favour of the auction purchaser. There are no doubt certain observations in the judgment observing that when an auction purchaser has come into possession of the property purchased and the auction has been set aside his possession was wrongful, but these observations will have no application to a reserve case, where the auction purchaser was not entitled to get possession and the proper person to remain in possession of the property and to realise the profits was the judgment-debtor. This authority cannot, therefore, govern the case of the present type where the possession of the judgment-debtor between the date of sale and its confirmation cannot be said to be wrongful.

8. In the case of Sarat Kamini Dasi 29 Cal WN 973 : (AIR 1926 Cad 65) (Supra) a Division Bench ofthe Calcutta High Court did express the view that in a suit by the auction purchaser to recover sums realised by the defendant as rent from the tenant of the iand, the limitation in respect of the rent realised between the date of the sale and the date of the confirmation of the sale would be governed by Article 109 of the Limitation Act. This authority does not seem to have considered the provisions of Section 65 C. P. C. nor has it considered the question whether the auction purchaser could at all realise the rent of the property before the confirmation of the sale. It has aiso not taken into consideration the rights of the judgment-debtor in realising the rent of the property sold or the date when, the realisation became wrongful or the date when the cause of action accrued.

The view taken by this authority has not been accepted by the Madras High Court in T. Section Radhakrishna Chettiar's case ILR (1954) Mad 1213. In the case of Radhakrishna Chettiar ILR (1954) Mad 1213 (Supra) all the earier authorities have been considered and the Division Bench which decided that case after considering the rights of the auction purchaser, the rights of the judgment-debtor to remain in possession from the date of the sale till the date of the confirmation as well as the fact that the right to realise the rent accrued in favour of the auction purchaser from the date of the confirmation of the sale took the view, that to such a case the proper article applicable was Article 120 of the Limitation Act.

That was a case, in which the execution sale took place in 1935 but the sale was not confirmed till December 1943, The auction purchaser was able to get possession in December 1943 and January 1944 and then brought, a suit for recovery of profits of all the properties against the judgment-debtor from the date of execution sale. It was held, with which view I agree with respect, that : --

'Article 120, and not Article 109 of the Limitation Act (IX of 1908) would apply to the case. Between the date of the court-sale and of its confirmation, the only person who was entitled to be in possession of the property sold and to enjoy or collect the rents and profits from it was the judgment-debtor. Till the confirmation, the auction-purchaser had only an inchoate right and could not have sustained a suit either for possession or for mesne profits. The right to sue for the profits of the entire period between the sale and its confirmation accrued to the plaintiff only on the confirmation of the sale. The receipt of rents and profits during that period by the judgment-debtor could not, therefore, be held to be wrongful'.

9. To my mind this authority lays down the correct law. For the application of Article 109 the material point is that the realisation of the profit must be wrongful, on the date the profits are received. The word 'wrongful' would mean that the person who realises the profits had no legal right to realise the same, but still he did so. in a case where the auction sale look place but the sale is not confirmed for some time the auction purchaser could not realise the rants and profits. The only person who could realise the same lawfully was the judgment-debtor. The realisation of rents and profits by the judgment-debtor couid not, therefore, be called wrongful nor could it be said that when the profits were received they were received wrongfully. It may be that : after a right to recover rent accrued in favour of the auction purchaser on the dale of the confirmation of the sale, the rents realised earlier by the judgment-debtor became wrongful because of the accrual of the right in favour of auction purchaser, yet that righthaving accrued subsequently and the realisation of rent by the judgment-debtor having become wrongful subsequently, it could not be said that on the date the realisation was made, it was wrongful or that the profits had been wrongfullly received on the date they were received.

10. Under Section 65 C. P. C. the title vests in the auction purchaser retrospectively from the date of the sale, but the right of possession of the property purchased accrues in favour of the auction purchaser from the date the sale becomes absolute. It is for this reason that undar Article 138 of the Limitation Act the starting point of limitation for a suit for possession by the auction purchaser, commences from the date when the sale is confirmed. The provision of Section 65 only recognizes the vesting of the property from the back date or retrospectively, but that would only mean that the auction purchaser became entitled to recover the rents ant) profits from that date though at the same time between the date of sale and confirmation he had no legal right to realise the same and the person who could realise the rents and profits was the judgment-debtor. The realisation of rents made by the judgment-debtor would thus not be wrongful, or, the date of realisation.

The accrual of right in favour of the auction purchaser from the date of the confirmation of the sale would only mean that the auction purchaser became entitled to recover the amount from the judgment-debtor. The case cannot, therefore, be governed by Article 109 of the Limitation. Act. It would thus be governed by the residuary Article 120 which gives six years period of limitation from the date when the right to sue accrued. The right to sue in favour of an auction purchaser for recovery of rent for the period between the date of 'sale and its confirmation having accrued only from the date of confirmation of sale, his suit for the rent between 16th September 1955 to 15th December 1957 was within time and was not barred by limitation as the judgment debtor had been impleaded in the suit on 11th May 1959. The courts below were, therefore, not right in dismissing any part of the plaintiff's claims as barred by limitation. The revision to that extent must, therefore, succeed as against defendant No. 2. So far as defendant No. 1 goes he having made bona fide payments the suit was rightly decreed for Rs. 110/- only against him.

11. The revision is allowed with costs against defendant No. 2 and the decree of the court below is modified to this extent that the plaintiff's claim for Rs. 1210/- stands decreed with costs against that defendant. The decree against defendant No. 1 is maintained. The revision against him is dismissed with costs.


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