P.N. Shinghal, J.
1. This second appeal by plaintiff Wazirsingh arises from the appellate judgment and decree of the learned District Judge of Ganganagar, dated December 2, 1961, in these circumstances
2. Thirty bighas and one biswa of agricultural land situated in Chak No. 49 G. G. A. of tehsil Karanpur, district Ganga-nagar, was put to auction by the Sales Officer of the Evacuee Department of the State of Rajasthan. The plaintiff gave the highest bid and deposited Rs. 2164/- as the one-tenth amount, at the fall of the hammer on October 21, 1955. The plaintiff made several applications expressing his willingness to deposit the balance of the sale price and asking for delivery of possession of the land, but to no avail. He therefore filed the present suit on April 23, 1960 for recovery of Rs. 2164/-, and Rs. 596/- on account of interest, making a total of Rs. 2760/-. The State of Rajasthan, which contested the suit, admitted the auction and the deposit of Rs. 2164/-, but pleaded that the sale was set aside by the Competent Officer and so there was no question of delivery of possession of the property to the plaintiff under that sale. Further, the defendant pleaded that when R bighas and 13 biswas of land were sold as composite property on November 15, 1956, the plaintiff offered the highest bid of Rs. 8650/- and made a request for the adjustment of his earlier deposit of Rs. 2164/- against that second sale. This was done, but as the plaintiff did not deposit the balance of the sale price, the sale was not confirmed. The defendant also denied the claim for interest and pleaded that the suit was barred by time. The plaintiff filed a replication which, it is not disputed, related to the second sale dated November 15, 1956. and it has no real bearing on the present controversy. The trial court framed issues on the points in controversy between the parties. It will, however, be enough to refer to the following three issues which arose for decision in the case. -
(1) Whether the earlier deposit of Rs. 2164/- was adjusted on account of the plaintiff's bid at the second sale dated November 15, 1956 at his request and has it therefore been refunded to him already?
(2) Whether the suit is within limitation? And
(3) Whether the plaintiff is entitled to interest?
The trial court decided these issues against the plaintiff and in favour of the defendants and dismissed the suit by his judgment dated May 23, 1961. On appeal, the learned District Judge held that the deposit of Rs. 2164/- had been adjusted against the deposit which was due from the plaintiff on account of the second auction sale, and that whatever balance was left over was not payable on account of the bar of limitation. In this view of the matter, the learned District Judge maintained the order of dismissal of the suit. It is in these circumstances that this second appeal has arisen.
3. I have already set out the three points which arise for decision in this case and shall deal with them one by one.
4. It has been argued by Mr. Sisodia, learned counsel for the plaintiff-appellant, that the finding of the two courts below that the deposit of Rs. 2164/-, which was made on October 21, 1955, was adjusted on account of the deposit for the second sale dated November 15, 1956, even though concurrent, is vitiated because the defendants have not led any evidence to justify it. According to the learned counsel, the finding is based on no evidence at all. A perusal of the record shows that there is justification for this submission. The plaintiff produced receipt Ex. 6 dated October 21, 1955 to prove that he deposited Rs. 2164/-on that date for the sale of 30 bighas and 1 biswa of land, and the receipt has been admitted on behalf of the defendant. The plaintiff has also recorded his statement to prove the deposit. He denied that he had agreed to the adjustment of that deposit against the second sale dated November 15, 1956 and his statement to that effect has not been shaken in cross-examination. It was therefore for the defendant to prove the alleged adjustment in connection with the subsequent sale dated November 15, 1956, but all that the defendant did was to produce the 'bid form' Ex. A 1. One Kai-lash Chandra D. W. 1 was examined in connection with the form and he merely stated that he could identify the signature to be that of T. Sharma, who was the Competent Officer. Thus while it has been proved that Ex. A.I bears the signature of T Sharma, the Competent Officer, the laconic statement of Kailash Chandra does not prove that the plaintiff had agreed to the adjustment of the earlier deposit of Rs. 2164/- in connection with the subsequent sale. Even the wordings of the note appended by T. Sharma do not show that the adjustment was made at the plaintiff's request. It has therefore to be concluded that the plaintiff's statement that he had not agreed to the adjustment of his earlier deposit of Rs. 2164/-, has not been rebutted, and it is apparent that the contrary finding of the lower appellate court is based on a complete misreading of the evidence on the record. The first point is therefore decided in favour of the plaintiff and the plea of adjustment and refund of Rs. 2164/- is rejected for want of proof.
5. The next and the more important question is whether the plaintiff's claim for refund is barred by limitation. The trial court decided the point in favour of the plaintiff, but the learned Judge of the lower appellate court has held that the claim was barred under article 62 or 97 of the First Schedule to the Limitation Act whichever article is applied to the case, and the question is whether this view is correct.
6. In order to appreciate the controversy, it is necessary to give some more facts regarding the claim of the plaintiff which are, however, not in dispute. The entire agricultural land measuring 30 bighas and 1 biswa belonged to evacuees. Eight bighas and 13 biswas were mortgaged for Rs. 2500/- in favour of Indersingh and Shyamsingh, sons of Nidhansingh, on April 28, 1947. Thereafter the mortgagors took further loans from Indersingh and Shyamsingh upto July 21, 1947 making a total of Rs. 8,000/- including the earlier mortgage money amounting to Rs. 2500/-. The entire land measuring 30 bighas and 1 biswa was however put to sale by auction and the plaintiff gave the highest bid on October 21, 1955 and deposited Rs. 2164/- as has been mentioned already. He offered to pay the balance and asked for possession, but the matter, in the meantime, came for consideration before the Competent Officer who decided it on July 8, 1956. He held that while it had been proved that there was a charge for Rs. 8000/- on the entire land measuring 30 bighas and 1 biswa, that charge did not amount to a 'claim' within the meaning of Section 2(b) of the Evacuee Interest (Separation) Act of 1951 and that he was only concerned with the mortgage dated April 28, 1947 for Rupeea 2500/- in respect of 8 bighas and 13 biswaa of land. He therefore held that the question of a charge over the entire property fell within the competence of a civil court. He further held that as the mortgagees had enjoyed the usufruct in the meantime, they were entitled to claim only Rs. 1406/8/- by sale of 8 bighas and 13 biswas of land. He gave the Custodian of Evacuee Property the first option to redeem the mortgage on payment of Rs. 1406/8/- within a month. It was after this decision of the Competent Officer that the second sale was held on November 15, 1956. All these facts have been narrated in the judgment of the Competent Officer and, as has been stated, they are not in dispute. The plaintiff gave a bid, but he did not deposit the sale price, and the property could not be sold to him. It is in these facts and circumstances that a decision has to be taken whether the claim in the suit is within limitation
7. It has been strenuously argued by Mr. Munshi, on behalf of the respendents, that the sale dated October 21, 1955 was ab initio void, and article 62 of the First Schedule to the Limitation Act governs the claim. According to him, it is barred by time as the suit was filed beyond the period of three years calculated from the date when the initial deposit of Rs, 2164/- was made on October 21, 1955. The learned counsel has placed reliance on A. Venkata Subbarao v. State of Andhra Pradesh, AIR 1965 SC 1773, Thakar Lal v. Nathulal, AIR 1964 Raj 140 and Mubarak Hussain v. State of Rajas-than, AIR 1967 Raj 14 to support his argument.
8. Article 62 governs claims for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use' and the period of limitation commences from the date when the money was received. It is by now well settled that where a transaction fails because it is void ab initio, the suit for recovery of the money would be governed by this article. This is also borne out by the observations made in the three cases cited by Mr. Munshi to which reference has just been made. The question is whether the sale was void ab initio in the present case. The plaintiff has not taken the plea that the sale was void ab initio, and the defendant has also not pleaded that this was so. At one stage Mr. Munshi went to the extent of making the submission that the sale dated October 21, 1955 was void ab initio because it was made in contravention of the provision of the law prohibiting sales of composite properties. The learned counsel found, however, that he could not place his case that high. He therefore contented himself with the submission that the sale should be held to be void because the Competent Officer ultimately decided (by his judgment dated July 8, 1956) that 8 bighas and 13 biswas of land was subject to a mortgage in favour of Indersingh and his brother and to that extent it was a composite property so as to require separation of the evacuee interest therefrom. But this is far from proving that the sale was void ab initio. As has been stated, at the sale held on October 21, 1955 the plaintiff made the highest bid for the purchase of 30 bighas and 1 biswa of the land, and there is nothing to show that the plaintiff was not then aware that the property had been encumbered to the extent of 8 bighas and 13 biswas by a mortgage in favour of Inder-singh and Shyamsigh, or that it was subject to a charge in their favour for a total sum of Rs. 8,000/-. In fact there is no plea that the plaintifi was not aware of any such encumbrance on the property for which he gave the highest bid. There is therefore justification for the submission that the plaintiff made a bid to purchase the property for whatever it was worth, and that he was quite willing to pay off the mortgagees or the charge-holders if the property had ultimately been sold to him in pursuance of his bid for its purchase. So long as the plaintiff was content to secure by purchase whatever he could get from the property, he could very well say that the sale should be upheld to the extent permissible under the law. That this contention is correct, is borne out by the further fact that even after the judgment of the Competent Officer dated July 8, 1956, by which the plaintiff came to know about the encumbrance on the property, he called upon the defendant to take the balance of the purchase price from him and deliver possession to him. The mere fact that the custodian held a part of the property to be composite property, does not therefore justify the inference that the sale of the entire property was void ab initio and there can therefore be no ques-tion of the application of Article 62 to the claim of the plaintiff,
9. Mr. Munshi has also argued that, at any rate, the case is governed by Article 97. But this submission is also not correct. Article 97 governs claims for money paid 'upon an existing consideration which afterwards fails' and the three yearaj period of limitation starts from the date of failure of the consideration. The money in the present case was paid for the purchase of property and there can be two possible alternatives so far as the consideration is concerned, (i) the consideration was paid either under a contract which was not complete, or (ii) that it was made under a completed contract. In the case of the first of these two alternatives, there would obviously be no 'existing consideration' because there was no completed contract at all, and this appears to be the position in the present case. Even though the plaintiff made the highest bid on October 21, 1955, it was subject to acceptance by the Competent Officer as required by Rule 11D (11) (a) of the Evacuee Interest (Separation) Rules, 1951, and it is admitted that the Competent Officer did not accept the plaintiff's bid which therefore remained only an offer and did not mature into a contract When this was so, it cannot be held that this is a case of an 'existing consideration' which afterwards failed. I am fortified in this view by the decisions in Dewaji v. Amrita, AIR 1919 Nag 96 and Narayana v. Narayana. (1890) ILR 13 Mad 437.
10. I have also considered the other alternative namely, whether the payment was made under a completed contract but the consideration failed afterwards, A perusal of the record shows that the plaintiff did not take the plea that the consideration in the present case had failed. On the other hand, he all along asked for confirmation of the sale and delivery of the property. A perusal of the written statement also shows that the defendant did not take the plea that it was a case of a completed contract. In fact Mr. Munshi has argued that the consideration failed ab initio because the Competent Officer did not approve of the plaintiff's bid, so that the sale never took place. If this was so, it is futile to contend that, in the present case, there has been failure of an existing consideration. In spite of the order of the Competent Officer refusing to accept 1 he plaintiffs bid, and in spite of his subsequent judgment dated July 8, 1956, the plaintiff could justifiably contend that he was prepared to purchase whatever was left over even if its value had diminished because of the judgment. So even on the assumption that the present is a case of a completed contract, it cannot be held that its consideration failed afterwards so as to attract Article 97.
11. It therefore appears to me that the case does not fall within the purview of Article 62 or Article 97 of the Limitation Act.
12. It has, however, been urged bv Mr. Munshi that I should apply Article 96 to the claim. That article governs a case in which relief is sought on the ground of mistake, and the period of limitation runs from the date when the mistake became known to the plaintiff. Mr. Munshi has accordingly argued that as the plaintiff came to know on July 8, 1956 when the judgment of the Competent Officer was given, that that Officer had not accepted the bid and had held a part of the property to be composite property, he should have brought his suit within three years from that date on realising his mistake in making a bid for its purchase. Alternatively, Mr Munshi has argued that, at any rate, the plaintiff knew on November 15, 1956 when the second auction sale was made that his earlier bid had been made under a mistake and so he should have brought tht suit within three years from that date. As this was not done, the learned counsel has argued that the suit is barred on the application of Article 96
13. In order to arrive at a decision, I have once again gone through the pleadings and the evidence. The plaintiff has nowhere stated that there was a mistake in selling the property, or that he committed a mistake in making a bid for its purchase So also, the defendants have not taken the plea that any mistake was committed when the property was put, to auction on October 21. 1955. In fact a perusal of the judgment of the Competent Officer dated July 8, 1956 also shows that he did not make an order setting aside the sale so as to justify the argument that it disclosed to the plaintiff that he had made a mistake in making his bid at the auction sale of 1955. It has not been pleaded or argued that the evacuees to whom the property initially belonged had no saleable interest at all at the time when it was put to sale on October 21, 1955. In all these facts and circumstances, there can be no question of the application of Article 96 on the ground of a mistake in the sale or in the bid made by the plaintiff to secure the property in 1955. In this view of the mat-ter, J. Rudrayya v. J. Subbarayappa AIR 1941 Mad 742 and A. N. Marudachalam Chettiar v. S. A. Veera Boyan, AIR 1964 Mad 9 cited by Mr. Munshi have no relevance because both these cases relate to sales in which the parties had acted under a mistake in bringing to sale and buying property to which the judgment-debtor was not entitled or in which he had no saleable interest at all. As has been pointed out, this is not so in the present case.
14. Having put aside Articles 62, 97 and 96 as inapplicable to the present claim, it appears to me that it would fall within the purview of article 120 as I find that this is a suit for which no period of limitations has been provided elsewhere in the First Schedule to the Limitation Act of 1908. The period of limitation would therefore be six years from the date when the right to sue accrued. As the deposit was made on October 21, 1955 and the suit was instituted on April 23. 1960, it is within the period of limitation prescribed for such a claim. The learned District Judge was clearly in error in taking a contrary view.
15. It is not necessary to consider the remaining question of interest because Mr. Sisodiya has not argued that interest upto the date of the suit should be allowed to the plaintiff.
16. In the result, the appeal is allowed, the impugned judgment and decree ofthe lower appellate court are set aside andthe plaintiff's suit decreed for Rs. 2164/-with pendente lite and future interest at 8per cent per annum. and costs throughout.