Henry Richards, Kt. C.J. and Banerji, J.
1. The facts out of which this appeal arises are a little peculiar. It appears that the defendant obtained three mortgage decrees on foot of three separate mortgages against the property which the plaintiff now seeks to recover. There were three separate sales. The defendant himself purchased at two of the sales. He bid at the third sale, but he was out-bid by the plaintiff, and the plaintiff was accordingly declared the auction-purchaser. The sale to the defendant was on the 21st of February, 1898; that to the plaintiff was on the 21st of April, 1898. The defendant obtained either formal or actual possession on the 7th of November, 1898. The sale to the plaintiff was confirmed on the 30th of May, 1899. The present suit was not instituted until the 1st of June, 1910. In any view of the case, the plaintiff slept on his rights for nearly twelve years. The only question which had to be decided was one of limitation. It has been urged with great force in the present Letters Patent Appeal that Article 144 of the Limitation Act is the article which should regulate the present suit. The learned Judge of this Court, in his decision against which the present Letters Patent Appeal has been preferred, held that Article 138 applied. It is quite true that the plaintiffs suit is based on an auction purchase in execution of a decree; it is also true that at the date of the sale to the plaintiff the judgment-debtor was in possession. At first sight it would appear as if Article 138 applied. We are, however, inclined to think that Article 138 only applies to suits in which the auction-purchaser is plaintiff, and the judgment-debtor, or some person claiming through him, is defendant. [See Ram Lakhan Rai v. Gajadhar Rai (1910) I.L.R., 83 All., 224 and also Khiroda Kanta Roy v. Krishna Das Laha (1910) 12 C.L.J., 378.] The respondent meets this argument by saying that even assuming that Article 144 is the article which applies to the circumstances of the present case, it has been found that he claims through the judgment-debtor and that therefore he is entitled to add to his own possession the possession of the judgment-debtor from the 30th of May, 1898. It is clear that if the defendant is so entitled to add this period, the claim would be time-barred. It is true the defendant claims through the judgment-debtor. He was an auction-purchaser of the judgment-debtor's interest and is in possession as such. It is, however, contended on behalf of the plaintiff, that having regard to the fact that the defendant allowed the property to be put up to sale a third time and bid at the sale himself, he ought not to be allowed to say that he claims through the judgment-debtor. Both the court of first instance and the lower appellate court placed considerable weight on the fact that the defendant bid at the auction sale at which the plaintiff was declared the purchaser. But no issue was framed as to whether or not the defendant is estopped from setting up the case that he claims through the judgment-debtor. It has not been explained how it was that the property came to be put up to sale on foot of each of the decrees, nor has it been shown how far the defendant was responsible for the property being so put up. All the decrees appear to have been put into execution about the same time, and it may have been that the court executing the decree was as much, or more, to blame than the defendant, in allowing the same property to be sold three times. Furthermore, it has not been found that the plaintiff was ignorant of the fact that two months before his purchase the property had been already sold and purchased by the defendant. If he knew all these facts it could hardly be said that he was misled by the fact that the defendant bid at the last auction sale. We think that before finally disposing of the appeal we should have a clear finding on this issue of estoppel. We therefore refer, under Order XLI, Rule 25, the following issue:
Did the defendant by his act intentionally cause the plaintiff to believe that he did not already purchase the property himself, and that the property could be sold and a good title given under the decree in execution of which the property was sold to the plaintiff?
2. In considering this issue the court will bear in mind the importance of the knowledge of the plaintiff of what had previously occurred. The court will take such additional evidence as the parties may adduce, relevant to the above issue. On receipt of the finding ten days will be allowed for filing objections.
3. On return of the finding the appeal was dismissed.