A.K. Kirty, J.
1. In this appeal by the plaintiff the point for consideration is whether the suit was barred by limitation. The two courts below have dismissed the suit holding that it had been filed beyond the period prescribed under Art 99 of the Indian Limitation Act, 1908.
2. The material facts about which there is no controversy now are that there was a joint decree for money against the appellant and respondent No. 1 in execution of which some property belonging to the appellant was sold; that on 28-1-1954 the appellant filed an application under order XXI, Rule 89, C. P. C. and deposited Rs. 1751/-; that the sale was set aside by the executing court by an order dated 6-2-1954; that the appellant would be entitled to a decree for Rupees 1439/- by way of contribution from respondent No. 1 if the suit is not barred by limitation and the decision of the courts below dismissing the suit as barred by limitation is wrong. The courts below have held that the starting point of limitation under Article 99 of the Limitation Act would be the date of deposit made by the appellant in court on 28-1-54 and that the suit which was filed on 4-2-57 was, therefore, barred by limitation.
3. The question, therefore, which falls for decision is what would be the date from which the period of limitation prescribed under article 99 of the Limitation Act is to be computed. I may mention here that Mr. K.C. Saxena learned counsel for the appellant, also advanced an argument that the provisions of Article 61 and not those of Article 99 of the Limitation Act would govern the suit During the course of arguments, however, he had to concede that on the facts of the case his submissions about applicability of Article 61 would be difficult to substantiate and he, therefore, concentrated on his arguments based on the language of Article 99 of the Limitation Act and submitted that upon a proper construction of this Article the starting point of limitation would not be the date of deposit but the date when the application under Order XXI. Rule 89 C. P. C, was allowed by the executing court.
4. Article 99 of the Limitation Act reads as follows:
Description of the suitPeriod of Limitation.Time from which period begins to run.For contribution by a party who has paid thewhole or more than his share of the amount due under a joint decree, or by asharer in a joint estate who has paid the whole or more than his share of theamount of revenue due from himself and his co-sharers.Three years.The date of the payment in excess of the plaintiff'sown share.
The cause of action for a suit for contribution accrues to a person 'who has paid the whole or more than his share of the amount due under a joint decree'. This right to contribution arises, because of a joint decree, the liability for the discharge of which lies on all the judgment-debtors, has been satisfied by one Judgment-debtor alone and he has paid no only his proportionate share of the decretal sum, but also the shares which his co-judgment-debtors were liable to pay and ought to have paid. Therefore, to my mind it is upon the full or even partial satisfaction of the joint decree on payment by one of the judgment-debtors that the law gives a right to the judgment-debtor concerned to recover the excess amount paid by him by a suit for contribution if his co-judgment-debtors do not voluntarily reimburse him. In considering the question of the applicability of Article 99 of the Limitation Act, therefore, it will be essential to consider as to when the joint decree itself has been so satisfied on payment by one judgment-debtor who claims contribution,
5. The period of three years provided under Article 99 of the Limitation Act has to be computed from 'the date of payment in excess of the plaintiffs own share.' It has, therefore, to be determined as to which is the date of payment in the instant case. Article 99 of the Limitation Act does not use the words 'payment to decree-holder', although in order to satisfy a money decree payment to the decree-holder is essential unless the decree is adjusted in some other way by mutual agreement. We are not concerned here with the case of satisfaction of decree by adjustment or otherwise than by payment In a case where the decretal sum is paid directly to the decree-holder by one of the joint-judgment-debtors it will not be difficult to fix the date of payment, because payment is made directly to the decree-holder and accepted by him and this physical act of giving and taking can always be fixed with reference to the particular date and hour when this takes place although order 21 Rule 2 C. P. C. requires even such payments to be certified and recorded. Difficulties, however, arise when there is no such direct payment and either the decretal sum is recovered through the process of execution or is deposited in court for payment to the decree-holder during the pendency of the execution proceedings. As it has already been mentioned before in the instant case a sale had taken place and, in order to avoid the sale being confirmed and consequent deprivation of the property sold, the plaintiff had availed himself of the provisions of Order XXI Rule 89 C. P. a which gave him, a right to make an application for the setting aside of the sale.
Order XXI rule 89, C. P. C. gives a right not only to the judgment-debtor but also to other persons interested in the property or persons deriving title through the judgment-debtor to make an application to have the sale set aside. Such an application can only be made by the applicant concerned on his depositing in court, (a), for payment to the purchaser, a sum equal to 5% of the purchase money and (b) for payment to the decree-holder, the amounts specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. It is evident, therefore, that a person applying for setting aside the sale under Order XXI, Rule 89 C. P. C. has not only to deposit the entire sum included in the sale proclamation, but also to make the requisite deposit for payment to the purchaser. Another condition for making and prosecuting the application under Order XXI, Rule 89 C. P. C. for setting aside the sale is laid down in Clause (2) of Order XXI, Rule 89 C. P, C. which reads as follows:
'Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.'
The provisions of Order XXI, Rule 89 C. P, C. do not give a right to the decree-holder to withdraw forthwith the sum deposited by the applicant for payment to him. This right to receive payment arises evidently on an order being passed by the executing court allowing the application made under Order XXI, Rule 89, C. P. C. on being satisfied that all the requirements provided for by law have been duly complied with. The act of allowing the application under Order XXE, Rule 89, C. P. C. although in certain cases may partake the nature of a ministerial act, yet under certain circumstances the passing of a judicial order may become absolutely necessary.
Let us consider a case of an application under Order XXI. Rule 89, C. P. C. being made by a person who claims to be an interested person In the property and the application is contested either by the decree-holder or by the purchaser on the ground that the applicant in reality has absolutely no interest in the property sold. In such a case the executing court will have to give a decision on this dispute before passing any order either allowing or disallowing the application.
There may be other circumstances also In which a judicial decision by the executing court may be necessary before allowing or disallowing an application under.
Order XXI, Rule 89 C. P. C. The money which has been deposited by the applicant under Order XXI, Rule 89 C. P. C. can only be paid to the auction purchaser and the decree-holder when that application itself is allowed and, therefore, the right to receive payment can only arise on the date on which the application is allowed and not before that date. If this be the position it would be erroneous to say that the date of payment to the decree-holder can always be equated with the date of deposit. In some cases, the date of deposit itself may also be treated as the date of payment, by virtue of the order passed by the executing Court itself as was done in the case of Gahar Ali Houldar v. Abdul Owahab Sikdar : AIR1928Cal361 . In that case, the application under Order XXI, Rule 89, C. P. C. along with the necessary deposit was made on 4th February, 1920 and on that very date an order was passed by the executing Court dismissing the execution application on full satisfaction. The money deposited had been subsequently withdrawn by the decree-holders on 14th February, 1920, and it was held that the starting point of limitation would be 4th February, 1920 and not 14th February.
6. It has to be remembered that Order XXI, Rule 89, C. P. C. concerns besides the judgment-debtor and decree-holder the auction purchaser also and by the setting aside of the sale the auction purchaser also is deprived of his right to the property which he had purchased subject of course to confirmation of the sale by the court. The auction purchaser, therefore, also will have a right to object to the application under Order XXI, Rule 89 C. P. C. if proper grounds for such objection are available to him. The auction purchaser also does not get any right to withdraw the purchase money deposited by him unless and until an order is duly passed by the executing court allowing the application under Order XXI, Rule 89, C. P. C. and setting aside the sale. References in this connection may be made to Order XXI, Rule 92, C. P. C. which also indicates that the passing of an order allowing an application under Order XXI, Rule 89, C. P. C. and the setting aside of the sale is neither mechanical nor ministerial. Indeed, a definite provision has been made that no order shall be made to set aside the sale unless notice of the application under Order XXI, Rule 89, C. P. C. has been given to all persons affected thereby. The persons affected, as already indicated above, would ordinarily be a decree-holder and the auction purchaser but besides these persons in some cases others may also come under the category of the persons affected. I am not, however, concerned in the instant case with the question as to who may be the persons affected. Forthe purpose of deciding the instant easel it will be enough for me to show that merely by virtue of the making of an application under Order XXI, Rule 89, C. P. C. and making the requisite deposit neither the decree-holder nor the auction, purchaser gets a right to withdraw the sum deposited by the applicant under Order XXI, Rule 89, C. P. C. That really accrues and is dependent on the setting aside of the sale; and the setting aside of the sale itself can only be done under am express order of the executing Court itself. I am, therefore, of the opinion that the date of payment for purposes of computation of limitation under Article 99 of the Limitation Act would be the date when an order allowing an application under Order XXI, Rule 89, C. P. C. and setting aside the sale is passed by the executing Court, because immediately on the passing of that order a right instantly accrues to the decree-holder to withdraw the sum deposited. The date of actual withdrawal of the deposit by the decree-holder is not at all material, because that date would be entirely dependent on the volition of the decree-holder. The material date would be the date when under the law the decree-holder became entitled to withdraw the deposit and that date, as indicated above, in my opinion, would be the date of the passing of an order allowing the ' application under Order XXI, Rule 09, C. P. C. and setting aside the sale.
7. There is another reason which has been adopted by some courts for holding that the date of deposit under Order XXI, Rule 89, C. P. C. would not be the date from which limitation under Article 99 of the Limitation Act is to be computed. The reason is this that an applicant under Order XXI, Rule 89, C. P. C. can withdraw that application or even get it dismissed for want of prosecution. There is nothing in the Civil Procedure Code to prevent the withdrawal of such an application or its dismissal for want of prosecution. Further, a judgment-debtor filing an application under Order XXI, Rule 89, C. P. C. may previously have filed an application under Order XXI, Rule 90, C. P. C. or may even subsequently file such application. In Order XXI, Rule 89 (2) itself it is provided that the applicant under Order XXI, Rule 89, C. P. C. will neither be entitled to make the application or to prosecute the same unless he withdraws the application under Order XXI, Rule 90, C. P. C. Therefore, a case may arise in which a judgment-debtor having already made an application under Order XXI Rule 90, C. P. C. also subsequently makes an application under Order XXI, Rule 89, C. P, C, In such a case the deposit made can never become payable to the decree-holder or the auction purchaser, because the right to file that application itself or to prosecute the same has been made entirely dependent on theWithdrawal of the application under Order XXI, Rule 90, C. P. C. The actof withdrawal of the application under Order XXI, Rule 90, C. P. C. is entirely dependent on the judgment-debtor or the person who had made that application. Therefore, it necessarily follows that mere filing of an application under Order XXI, Rule 89, C. P. C. and the making of the requisite deposit do not by themselves give a present and an indefeasible right to the decree-holder to receive the sum in payment of the dues under the decrees. To hold, therefore, that the date of deposit will be the date of payment for computation of limitation under Article 99 of the Limitation Act would, in my opinion, create a legal anomaly or impossibility, at least under certain circumstances just noted above. If, on the other hand, the date of payment is held to be the date when the application under Order, XXI, Rule 89, C. P. C. is allowed and the sale is set aside for the purpose of computation of limitation under Article 99 of the Limitation Act, no difficulty can arise under any circumstance and that date as the starting point of limitation will be universally applicable in all cases.
8. The respondent unfortunately is not represented in the appeal. Therefore, I have had to give considerable thought myself to the question apart from considering the submissions made on behalf of the appellant by Mr. K.C. Saxena. There does not appear to be any case directly on the point decided by our High Court. The lower appellate court relied on two decisions of the Madras High Court and one decision of the Orissa High Court. In the circumstances I thought it appropriate to consider the relevant provisions of law before considering the decisions relied on by the court below:
9. In Meghavaranam v. Md. Mohideen Sahib : AIR1936Mad782 Wadsworth, J. held that the date of starting point of limitation both under Articles 61 and 99 of the Limitation Act would be the date when the plaintiff suffered detriment for the first time by making the payment and that such date would be the date when the plaintiff parted with his money by making a deposit in court. The learned Judge disagreed with the view of the Calcutta High Court in the cases of Ananda Mohan Roy v. Maniruddin Mahomed, AIR 1917 Cal 203 and AIR 1923 Cal 361. The view of the Calcutta High Court in the two aforesaid cases was that the criterion for determination of the date of payment must be ascertainment of the date on which the plaintiff lost dominion over the money which he deposited, and further that the plaintiff continued to have dominion over themoney which he had paid into court to set aside a sale or in satisfaction of a decreeUntil that money is appropriated by formal proceedings of the court. With respect to the learned Judge I am unable to agree with the decision given by him, but, on the other hand, I am in agreement with the view of the Calcutta High Court.
10. In C. Bapayya v. T. Sitaramamma : AIR1954Mad185 Bashir Ahmad Sayeed, J. agreed with the view of Wadsworth, J. noted above and held that in a suit for contribution whether governed by Article 61 or Article 99 of the Limitation Act the starting point of limitation is the date when money is paid into Court.
11. For reasons given above, I am unable to agree with the view taken by the learned judge.
12. Das, J. in Khetra Nahako v. Sukuru : AIR1957Ori224 also took a view similar to the view of the learned Judges of the Madras High Court noted above. In this case, the decretal amount was paid by the plaintiff to the process server when the latter went to serve certain process in the execution case on 23-9-1951. The actual order for the payment to the decree-holder wa3 made by the court on 19-10-1951. It was held by Das, J. that on 23-9-1961 money was paid to the process server and accepted on behalf of the decree-holder and that limitation began to run from that date. Therefore, the facts of the Orissa case apparently were different from the facts of the instant case. Even apart from the difference in the factual position of the two cases as indicated above, I am unable to agree that the date of starting point of limitation under all circumstances would be the date of payment into court.
13. I have already indicated above that Calcutta High Court has taken a view that the relevant date would be the date when the plaintiff completely lost dominion over the money deposited by him. This view has been taken upon the footing that the applicant under Order XXI, Rule 89, C. P. C. would have a right to withdraw the application. It is not, therefore, necessary for me to refer to the Calcutta cases any further.
14. Mr. K.C. Saxena placed reliance on a decision of Oudh Judicial Commissioner's Court in Iqbal Narain v. Suraj Narain, AIR 1918 Oudh 303 (1) in which Lindsay. J. C. held that the date of payment under Article 61 of the Limitation Act would be the date of appropriation of the amount deposited and not the date of the deposit itself. The view taken by the learned Judicial Commissioner does support the view taken by me to a considerable extent, although I am not prepared to go to the length of saying that the date of actual appropriation of thesum deposited would be the starting point of limitation unless, of course, the passing of the order allowing an application under Order XXI, Rule 89 C. P. C. and setting aside the sale is tantamount to appropriation of the deposit to payment for the satisfaction of the decree itself. I would disagree with the view in case the appropriation is equated with the actual act of receiving the money by the decree-holder.
15. Mr. Saxena also relied on the decision of the Oudh Chief Court in the case of Murlidhar v. Naunihal Singh, AIR 1932 Oudh 222 in which two learned Judges held that when money is deposited in Court time for computation of limitation under Article 61 of the Limitation Act runs From the date of its appropriation and not from the date of the deposit, I have already indicated my view in the matter while discussing the case of AIR 1918 Oudh 303 (1) (supra) and I need not recapitulate the same.
16. After having given my anxious consideration to the question involved in the case I have come to the conclusion that the starting point for computation of the limitation under Article 99 of the Limitation Act in the instant case was 6-2-1954 when the order setting aside the sale was passed and not on 28-1-1954 when the application under Order XXI, Rule 89 C. P. C. was made and the requisite sum deposited in court. In my opinion, the courts below were in error in holding that the suit was barred by limitation and in dismissing the same on that ground.
17. I, therefore, allow the appeal, setaside the decree of the courts below anddecree the plaintiff's suit for Rs. 1439/-with pendente lite and future interest at41/2% per annum. The plaintiff will be entitled to his costs in the courts below. Butsince no one has appeared to contest theappeal, I direct the appellant to bear hisown costs of the appeal in this court.