1. The plaintiff in execution of a decree against Jahangira, defendant No. 1, put up his half share in a house for sale and purchased it himself on the 17th of November, 1905. Formal possession of this undivided share was given to him on the 12th of August, 1906. Before the plaintiff was given formal possession of Jahangira's half share, the latter, sold the whole house on the 15th of March, 1906, to Hansraj, who in turn sold it on the same day to Bhagmal, the son of Jahangira.
2. In 1918, the plaintiff brought a suit against Jahangira for possession of his half share in the house by partition and got a decree on the 22nd of February, 1919. When the Amin proceeded to execute the decree, he was resisted by Bhagmal, who claimed ownership of the entire house on the strength of his sale-deed. The Amin made a report to the Civil Court executing the decree, on the 19th of November, 1921. The Court by an order dated 22nd November, 1921, directed that the decree-holder should take whatever steps he considered necessary. He was allowed up to the 7th of December, 1921, and on that date he applied for adjournment for calling evidence, but his application for adjournment was rejected, and the execution case was struck off. On the 5th of January, 1923, the plaintiff instituted the present suit for possession of the half share in the house.
3. The defence raised the pleas that the suit was barred by one year's limitation under Article 11A and also by 12 years' limitation, as the plaintiff had not been in possession of the house within 12 years before the date of suit.
4. The Court of first instance found that the suit was barred on both the grounds suggested and accordingly dismissed the suit. The lower Appellate Court found that Article HA did not apply to the present case, because the decree-holder did not make any application as provided in Order XXI, Rule 97, and no investigation was made by the Court before dismissing the case for non-prosecution.
5. The lower Appellate Court further found that the suit was not barred by 12 years' limitation, since although Jahangira and his son Bhagmal have been occupying the house all along, i.e., from before the date of sale in the plaintiff's favour and ever since, nevertheless, their possession was not adverse to that of the plaintiff. The learned Subordinate Judge accordingly decreed the plaintiff's claim. In second appeal the same pleas of limitation have been pressed. In my opinion, the suit is barred under Article 138. The auction-purchaser must institute a suit for possession of the property purchased by him in execution of a decree within 12 years from the date when the sale becomes absolute. In the present case, the sale took place on the 17th of November, 1905, and must have become absolute about a month later. It is clear that the plaintiff never got actual possession of the property and that Jahangira and Bhagmal remained in possession and control of the house throughout. The question whether or not their possession was adverse to the plaintiff's, does not arise under Article 138. It was the plaintiff's duty to sue for possession within 12 years from the date of sale, and he has only himself to blame for delaying his suit for a period considerably beyond the 12 years. I hold that the suit was barred under Article 133. Even if the starting point of limitation is taken from the date of formal possession on the 12th August, 1906 the suit is barred under Article 142.
6. As this decision is sufficient to dispose of the appeal, it is unnecessary for me to consider whether the suit was also barred under Article 11A.
7. The appeal is allowed and the decree of the trial Court restored. The appellant will get his costs in the lower Appellate Court and in this Court including fees in this Court on the higher scale.