Ganapatia Pillai, J.
1. This appeal is preferred against the decree and judgment of the learned District Judge, South Arcot, dismissing the appellant's suit for specific performance of as agreement dated 3-8-1946, for sale of immovable properties, or, in the alternative for recovery of damages and the price advanced by the appellant under the agreement.
2. The admitted facts are the following. The properties in suit belonged to respondents. 1 and 2 who are members of an undivided Hindu family. The first respondent executed a mortgage over these properties in 1923 in favour of one Manjini Gounder for Rs. 2500. The mortgagee obtained a decree on this mortgage in O. S. No. 20 of 1937 on the file of the District Court, South Arcot, for sale of the mortgaged properties and assigned his decree to one Muthuvenkatapathi Reddi, who brought the properties to sale and the properties were sold to several auction purchasers. Thereupon the second respondent filed M. P. No. 302 of 1944 under Order 21 Rule 90 C.P.C. to set aside the sale. That was dismissed on 10-7-1945 and the sale was confirmed on 12-7-1945. The matter was brought up to High Court in C.M.A. No. 447 of 1945, and by the order of this Court dated 28-3-1946, the appeal was allowed and the petition to set aside the sale was remanded to the District Court for disposal.
3. It is said that the appellant had paid Rs. 1000 to the respondents towards the expenses of these proceedings and when the application to set aside the sale was remanded for disposal, another application under Order 34 Rule 5 C.P.C. was made for depositing Rs. 5856-8-3 into court. The sum represents the decree amount for which the properties ha been ordered to be sold. The appellant claimed that he had thus advanced Rs. 6856-8-3 to the respondents under the agreement that the respondent would sell the suit properties to him for the total sum of Rs. 6856-8-3 due to him. This agreement was entered into on 3-8-1946. A period of three months was fixed in the agreement as period within which the sale deed should be executed. The District Court on remand dismissed the application to set aside the sale. This happened on 25-2-1947. Thereupon an appeal was again preferred to this court, and it is said, that the parties mutually agreed to extend the time for execution of the sale deed pending disposal of the appeal in the High Court. The respondents were successful in the High Court and ultimately the sale was set aside on 8-1-1953. Thereupon, the appellant sent notices to the respondents on 9-12-1952 and again on 6-12-1953 calling upon them to execute the sale deed, but the respondents refused to comply with the demand.
4. Though the agreement in question recited that the appellant was given possession of the suit properties even on 3-8-1946, the respondents, it is urged, failed to surrender possession to the appellant. The appellant therefore claimed profits at the rate of Rs. 1000 per year for three years prior to suit in the shape of damages. In addition he also claimed repayment of Rs. 6856-8-3 will interest in case the court ruled that the appellant was not entitled to specific performance of the contract.
5. The respondents denied the truth of the agreement dated 3-8-1946 and also the allegation that any money was advanced by the appellant to them for expenses of the litigation or for depositing the sum of Rs. 5856-8-3 in the District Court. They also denied the agreement to extend the time for performance of the contract, and further they raised the plea of limitation.
6. The learned Judge in the court below found the agreement to be true and accepted the appellant's contention that a sum of Rs. 1000 was advanced by him for expenses of the litigation and Rs. 5856-8-3 for deposit into court. But, the learned Judge disbelieved the version of the appellant as regards the agreement to extend the time for performance. He came to the conclusion that both the claim for specific performance of the contract and for return of the price advanced together with damages were barred by limitation since the suit was not brought within 3 years from 3-11-1946. This date 3-11-1946 is the end of the three months' period fixed in the agreement as the period within which the contract should be performed.
7. The first question for our consideration in the appeal is whether the claim was barred by limitation in that it was not brought within 3 years from the date fixed in the contract for performance.
8. Article 113 of the First Schedule to the Indian Limitation Act is the Article applicable to a suit for specific performance of a contract. The third column of that article reads thus:
'The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.'
This indicates the starting point of the three year period of limitation provided under this Article.
9. Counsel for the appellant contends that though a three months' period was fixed in the contract as the period within which the sale deed should be executed, this should not be taken as a date fixed in the contract for performance because, having regard to the circumstances, both the parties understood that a conveyance could be executed only after the execution sale was set aside by the court. Till then, it was argued, there was no valid cause of action for the appellant to enforce the demand for performance of the contract.
10. When property has been sold in execution of a decree of court title passes to the purchaser on the date of the sale subject to defeasance on the sale being set aside by persons entitled to apply for such relief. This proposition could not be disputed. It is thus obvious that on the date when the agreement in this case was entered into the judgment debtors had no title to the property which they could convey by the agreement. The agreement can only be construed as an executory agreement promising to convey the properties after the judgment debtors recover title. This aspect of the rights of the parties under the agreement has been lost sight of by the learned District Judge when he came to the conclusion that the period of three months fixed in the agreement was a period which could not be varied or altered, or that it should be construed as the agreed period for effective performance of the promises contained in the contract. Every contract, including a contract for sale of immovable properties, has to be construed with reference to not only the intention of the parties as stated in the contract, but also the circumstances under which the terms and conditions of the contract were agreed upon by the parties. The doctrine of imputing intention to the parties to a contract which may at times be at variance with the terms of a contract reduced to writing is a doctrine which has found acceptance of late with courts. This doctrine really rests upon the principle of construing an agreement with reference to the real situation or context in which it was entered into and not relying upon the mere wording of the contract as fixing the real intention of the parties. The present case is a typical example of the application of the doctrine of imputing intention to the parties to a contract. Both the parties here were under the impression, as we could see readily from the circumstances, that the application for setting aside the sale then pending would be ordered by the District Judge within the period of 3 months fixed in the contract and the judgment debtors would then have regained title to the properties and be in a position to perform the contract. Factually that did not happen. In such cases the fixing of a period in the contract can only be construed as not expressing the real intention of the parties.
11. On another principle also the same conclusion might be reached. A cause of action arises for a party under a contract only when, as contemplated by the parties, the obligor is in a position to perform his promise ettectively. Till such date no cause of action arises for the other party to compel him to file a suit for specific performance of the contract. Various decisions were referred to by counsel on both sides as illustrating this principle which we would presently notice.
Before doing so we would set out the facts which are relevant. The agreement was entered into on 3-8-1946 and even before this date, on 28-3-1946 C. M. A. No. 44/ of 1945 had been allowed by this court and the application of the judgment-debtors to set aside the sale was remanded to the District Judge for fresh disposal and that application was pending on the date of the contract. The District Judge dismissed this application for setting aside the sale on 25-2-1947, and the appeal to this court against that order was disposed of only on 16-9-1952. Even thereafter the sale was actually set aside by the District Judge only on 8-1-1953. Clearly till then the judgment-debtors were not in a position to convey title to the suit properties by the execution of a sale deed, A cause of action accrued to the appellant no doubt on the date of the contract, but no suit could have been brought on this cause of action till 8-1-1953. This suit was filed on 4-1-1954. Therefore if the starting point of the period of limitation under Article 113 is taken as 8-1-1953 the suit would be well within time.
12. So far we have touched upon the relief of specific performance of the contract and we will separately deal with the relief of recovery of the money portion of the claim contained in the plaint.
13. In the first case relied upon by the learned counsel for the appellant, Mallikarjuna v. Parthasarathi, ILR (1944) Mad 742 : AIR 1944 Mad 218, the court had to consider whether the period indicated in a contract for sale of immovable property as the time for performance was a definite period from which limitation could start. In that case the contract was entered into on 18-7-1954 and the promise contained in the contract was to execute the sale deed when both the brothers of the obligor returned to the village for the next summer vacation, that is, May-June 1935. The question was whether limitation began to run from May-June 1935. The Bench observed thus:
'This is much too indefinite to be regarded as fixing a 'date' for the performance of the contract and we agree with the lower court that the period of limitation must be computed from the date of refusal to perform......'
What, according to us, underlies this decision is that the words of the third column in Article 113 of the First Schedule to the Indian Limitation Act should not be literally construed but liberally construed having regard to the facts of each individual case. 'The date fixed for the performance', which is the phrase occurring in the third column of Article113, must therefore be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed. This principle, though not explicitly stated in the decision cited, above, is in our opinion the rationale behind the ruling of the decision.
14. Support is found for this principle in Full Bench decision in Muthu Korakki Chetty v. Nadar Ammal, ILR 43 Mad 185 : AIR 1920 Mad 1. The question referred to the Full Bench there was, whether the existence of the cause of action for an application for delivery of possession, to which Article 180, Schedule I, Limitation Act applies, is suspended during the pendency of proceedings for the setting aside of the sale? Four Judges out of five Judges constituting the Bench answered this question in the affirmative. It should be necessary to notice that on the facts of that case delivery of possession was sought in respect of properties the sale of which was not set aside by the order of the court in the application for setting aside the sale. Abdur Rahim, Offg. Chief Justice observed thus in regard to this, matter,
'I do not think the fact that the sale was set aside in respect of some of the items included therein and up-field as regards the other items should make any difference as to the application of Article 180, for we are not concerned with the properties the sale of which has Been set aside, and as regards the rest possession of which alone is sought, the point for decision is whether the entertainment of the application to set aside the sale had or had not the effect of preventing the sale becoming absolute within the intendment of Article 180.'
15. The learned Judge said, the sale did not become absolute until the petition made to set it aside had been disallowed. After noticing that exclusion of time other than those mentioned in Sections 12, 14 etc., of the Limitation Act was not warranted by any decision of the Privy Council, the learned Judge based his opinion upon the fact already noticed, viz., till the application to set aside the sale had been disallowed, the sale did not become absolute. It is unnecessary for our present purpose to canvass the correctness of this view. But this view of the learned Chief Justice does not assist us in deducing any principle applicable to this case. Sadasiva Aiyar, J. on the authority of the decision in Baijnath Sahai v. Ramgut Singh, ILR 23 Cal 775 (PC) and Mst. Ranee Surno Moyee v. Shooshee Mokhee Burmonia, 12 Moo Ind App 244 (PC), stated that principlethus:
'That principle (as I understand it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities.' Seshagiri Aiyar, J. deduced the following principle from the various decisions of the Judicial Committee cited before the Bench : 'Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when remedy is available to the party.'
Burn, J. expressed his concurrence with the view of the three Judges mentioned above.
16a. It is true that the Officiating Chief Justice did not explicitly refer to principle of the cause of action arising only on the date when the proceeding between the parties finally settled their rights, but, in our opinion both he and Seshagiri Aiyar, J. impliedly accepted this principle when they ruled that the language of the third column of the first schedule should be so interpreted by dating the cause of action from a date when the remedy is available to the party. Though the reason for the rule is thus differently stated by Seshagiri Aiyar, J. it is in accord with the rule laid down by Sadasiva Aiyar, J. who preferred to put it on the ground that the cause of action only arose on the date when the proceedings settled the rights of parties. Though differently stated by the two learned Judges, the basis of the rule is that till the application to set aside the sale was dismissed by the court the auction purchaser had no indefeasible right to apply for delivery of possession. It should be noticed that this rule was held applicable even as regards properties in respect of which the court dismissed the application of the judgment-debtors for setting aside the sale.
16. We are aware that this principle has not been accepted by another Bench of this court; we refer to the decision in Sundaramma v. Abdul Khader, ILR 56 Mad 490 : AIR 1933 Mad 418. Jackson, J. who was a member of that Bench doubted whether the principle laid down by Sadasiva Aiyar, J. in ILR 43 Mad 185 : AIR 1920 Mad 1, really flowed out of the two Privy Council decisions relied upon by him. The learned Judge, in expressing this doubt, observed thus:
'It can hardly be said that ILR 23 Cal 775 (PC), and the other case cited, 12 Moo Ind App 244 (PC), lay down any such general proposition. These cases decide as a matter of fact that in certain circumstances a cause of action arose upon a certain date, and it would be very dangerous to proceed as though their underlying principle contained a general proposition of statutory force.'
With all respect to the learned Judge, we' venture to think this criticism is not justified. In the referring judgment to the Full Bench in Muthu Korakki Chetty's case, ILR 43 Mad 185 : AIR 1920 Mad 1, Oldfield, J. approved of the principle in Somasundaram Pillai v. Vennilinga Pillai, C. M. A. No. 355 of 1915 (unreported) where Ayling, J. laid down the rule thus:
'If circumstances exist which would render a suit or application infructuous, a party should not be compelled to institute it, until the impediment which stands in the way is removed.'
According to the learned Judge, this rule did not imply that if running of time started Under the Limitation Act for any suit or application it could be suspended except in the specified instances dealt with by the sections of the Limitation Act. The learned Judge divided the authority on the subject into three classes: (1) cases in which the plaintiff was allowed the time occupied in seeking one remedy like specific performance of an agreement before he sought another, for instance, damages to which he ultimately discovered his right; (2) cases in which the right to sue was suspended while the plaintiff had, or in good faith, believed that he had secured what he claimed. ILR 23 Cal 775 (PC), was conclusive as falling under this category (3) cases in which an outstanding adjudication could have been pleaded against the claim. After setting out these categories the learned Judge thought that thecase before him really did not fall under any of thesecategories because the right to apply for delivery of possession of the items in respect of which an application forsetting aside the sale had been made was not subject toany obstacle to its being enforced. However the learnedJudge recognised that there was much to be said for theargument that ILR 23 Cal 775 (PC) suggested a generalrule and that was that the intention of the legislature infixing the starting period of limitation was to hold generallyin favour of the right of plaintiff or applicant to defer institution of proceedings so long as any reasonable doubt existedregarding his position and the necessity for or possibilityof proceedings being taken. This qualified approval ofthe learned Judge of the principle flowing from ILR 23 Cal. 775 reinforces our conclusion that the doubt expressedby Jackson, J. cannot be accepted by us.
17. We are aware that Oldfield J. did not subscribe to the opinion of the majority of the Judges who constituted the Full Bench when he answered the question referred to the Full Bench in the negative. But as we read his judgment that answer was solely based upon the reason that if time had begun to run, its running could not be suspended on the facts of that case. This answer of the learned Judge does not, therefore, detract from his approval of the general rule flowing from ILR 23 Cal. 775 , expressed in his referring judgment. ' The opinion of the majority of the Full Bench proceeded on the rule deduced by Sadasiva Aiyar, J.
In our opinion both Sadasiva Aiyar, J. and Seshagirl Aiyar, J. were agreed that on the facts of that case the cause of action for applying for delivery of possession of the properties purchased: in court auction did not arise till the application of the judgment-debtors for setting aside the sale had been disposed of. The other two Judges, the Offg. Chief Justice and Burn, J. have accepted this conclusion. Oldfield, J. thought that the cause of action had already arisen on the date of the sale and the postponing of the starting of the period of limitation was really based upon the arguments that the cause of action was suspended till the application to set aside the sate was disposed of by the court.
18. With all respect to this learned Judge we agree that once the cause of action was complete and effective remedy was available for the party who relied upon the cause of action, suspension of the cause of action during any period after the cause of action had arisen could only be justified under the various exemptions specified in the sections of the Limitation Act.
19. Our next endeavour will be to show how the cause of action in this case did not arise till the sale of the mortgaged properties was set aside by the District Judge on 8-1-1953. We have already indicated that on the date when the contract was entered into the judgment-debtors had ho title to the properties because under the court sale title had passed to the auction purchaser. This transfer of title was no doubt defeasible by any order passed by the court on the application to set aside the sale. Whatever might be the remedy open to the auction purchaser on such defeasible title, so far as the original owner of the property was concerned, he had lost title. The agreement to convey property implies that the obligor has legal title which he could convey to the purchaser. It follows that on the date when the agreement in this suit was entered into the respondents had no such title and it was not the intention of the parties that a conveyance should be executed which would not be a conveyance of title to Immoveable properties. A cause of action is a bundle ofrights and it does not become complete until the person, who is the owner of the rights is enabled to assert his rights by instituting a proper proceeding for protecting it. The mere execution of a contract for sale of immoveable properties though may amount to the starting point of the process in which the cause of action is acquired, is not by itself sufficient to complete the cause of action. In this case we are satisfied that till 8-1-1953 when the District Judge passed his order setting aside the sale the cause of action was incohate and incomplete and became a completed cause of action only on 8-1-1953. This is not, therefore, a case of a right of suit being suspended, or a cause of action being suspended from 'the date of the contract upto 8-1-1953.
20. On this view it is unnecessary for us to rely upon the other principle that no party could be compelled to file a suit at a time when the suit would be infructupus or merely a vain proceeding in which the relief sought could not be obtained.
21. This principle has been applied in various decisions in slightly different forms. For example, in Peer Ammal v. Nallusami Pillai, ILR 54 Mad 455 : AIR 1931 Mad 149, it was held that when the order setting aside an ex parte decree is subsequently set aside in revision and the original ex parte decree is restored, the period of 90 days allowed by Article 156 of the Indian Limitation Act for an appeal from the original ex parte decree runs not from the original date of the decree, but from the date when it is restored in revision. Obviously the principle behind the rule applied in this decision is that the cause of action was not complete as the ex parte decree against which the appeal had to be preferred was liable to be set aside in revision, and when such an event had happened the period of limitation for filing an appeal did not begin to run, till the decree was restored in revision.
22. In Jaleendrachandra Bandopadhyaya v. Rebateemohan Das : AIR1935Cal333 , the principle of cause of action continuing to exist and being effective was stressed for determining the starting point of limitation for applying for delivery of possession of properties purchased by the decree-holder auction purchaser. The obstacle to applying for delivery of possession in that case was the operation of a decree of a competent court suspending the right of the auction purchaser by a declaratory decree which held that the decree in the mortgage suit was not binding against the mortgaged properties.
23. The case in Pazhaniappa v. South Indian Planting and Industrial Co. Ltd., AIR 1953 Trav. Co. 161 is on all fours with the case now before us. There also the question arose, when the period of limitation started for a suit for specific performance of a contract for sale of property belonging to a company. Though the contract fixed a period for completion of the transaction the Bench ruled that having regard to the facts and circumstances which appeared in the case the contract became one in which no time was fixed for its performance and consequently time did not begin to run from the date mentioned in the contract as the date of performance.
24. For all the reasons given above we are satisfied that in this case, though the contract mentioned a period for performance of contract that was not the starting point for the running of time having regard to the circumstances mentioned by us, and time began to run only from 8-1-1953 and consequently we reverse the finding of the learned District Judge and hold that the suit for specific performance was filed in time.
25. The next question for our consideration is whether the appellant should get a decree for specific performance of the contract. The long lapse of time between the date of the contract and the date when it is being specifically enforced by the decree to be passed in this litigation is one factor which it was urged should be taken into account in refusing specific performance. Another factor mentioned was that since the date of the contract prices of lands have risen considerably and it would be inequitable to enforce the contract now. A third ground urged was that the contract between the parties was substantially unfair in that the judgment-debtors the respondents were compelled to enter into the contract under stress of the court sale becoming absolute and their losing the properties unless money was found for satisfying the decree.
It is well established that mere inadequacy of price for which a property is agreed to be sold would by itself be no hardship which could be taken note of by a court for refusing specific performance. It is also well established that specified performance is a discretionary remedy and the court is not bound to grant such relief merely because it is lawful to do so. Section 22 of the Specific Relief Act lays down instance of cases in which the court may properly exercise a discretion not to decree specific performance. Obviously the list of illustrations is not exhaustive. The: modern rule of refusal to decree specific performance of a contract for sale of immoveable property has been stated in Pollock and Mullah's Indian Contract and Specific Relief Acts, 8th Edn. at page 798 thus,
'It is clear that the court may exercise a discretion in granting or withholding a decree for specific performance; and in the exercise of that discretion the circumstances of the case, and the conduct of the parties and their respective interests under the contract, are to be remembered.'
Oxford v. Provand, (1868) 2 PC 135, Jethalal Modi v. Bachu, : AIR1945Bom481 , are relied on in the foot-note as authorities for this rule. Any contract which gives one party an unfair advantage must fall under the category of contracts which could not be specifically enforced. This implies that the contracting parties were not at the time of the contract on equal bargaining terms.
In this case the court sale had taken place and the judgment-debtors had lost title to the properties which they could only recover on finding the money necessary to satisfy the mortgage decree within the time allowed for an application to set aside the sale. The price which the appellant paid under the contract was just the money necessary for deposit into court plus a sum of Rs. 1000 which was expended for prosecuting the proceedings both in the District Court and in the High Court. Viewed in a broad sense this really means that the judgment-debtors agreed to transfer title to the appellant rather than allow the properties to remain in the hands of the auction purchaser for no benefit to themselves. One can visuanse a situation where under such circumstances the judgment-debtors would not be moved to prosecute the proceedings in court solely for the benefit of a third party. We say so because for more than five years the judgment-debtors in, this litigation, viz., the respondents, were taking steps both in the District Court and in the High Court to prosecute the proceedings not for the sake of securing any benefit for the appellant alone. It is common ground that the contract in this case covered the entire hypotheca except one parcel of land, a few cents in extent, not valuable by itself. Consequently, taking advantage of the situation in which the judgment-debtors were placed the appellant secured for himself the properties, not negotiating for them on equal terms. It is admitted that the price obtained at the court auction was not the fair market price of the properties. Of course in most court auctions the price obtained is really below the market price. That by itself is no ground for setting aside the court sale unless the price was very very grossly inadequate. In judging the terms of a contract between the parties here this has some significance when taken along with the other factor, viz., the situation in which the judgment-debtors were placed, that is to say, unless they could find the necessary money for depositing into court to set aside the sale and to conduct the proceeding for this purpose, they had no prospect of regaining title to the properties.
26. Having regard to all these factors we conclude that the appellant obtained a measure of unfair advantage over the respondents, by the terms of the contract in this case and, therefore, we should refuse specific performance. It follows that the appellant would be entitled to claim the alternative relief asked for in the plaint. That consists of the return of Rs. 6856-8-3, the total amount paid by the appellant under the contract, and Rs. 3000 in the shape of mesne profits for 3 years before suit.
27. An argument was advanced that if we were to hold that the appellant was entitled only to return of the money paid under the terms of the contract that amount should carry interest from the date of payment till date of recovery. Normally we would be inclined to accept this argument but for the fact that the plaintiff-appellant himself in the plaint did not consider this form of compensation adequate. We say so because the plaintiff did not claim interest but only claimed Rs. 1000 per annum as damages. Without holding any enquiry as to whether this would really represent the profits realisable from the properties we are inclined to award the plaintiff-appellant this sum as compensation. The learned District Judge held that the claim for money was barred by limitation because he mistakenly assumed that this sum was payable on the last day of the three months period provided in the contract. Clearly the contract did not provide for payment of this money though there is a provision in the contract that in case the application for setting aside the sale was dismissed the amount deposited in court should be got back by the judgment-debtors and paid over to the appellant. The right to recover this sum could only arise when the sale was ultimately refused to be set aside by the District court. As events have happened in this case that contingency never arose because ultimately on 8-1-1953 the sale was set aside.
28. The money claim is really an alternative claim for compensation and damages and could only arise on the date when the claim for enforcing specific performance of the contract arose. In this view we hold that the suit for recovery of the money portion of the plaint claim was not barred by limitation on the date when the plaint was filed. The appeal is therefore allowed, the decree of the lower court is set aside, and instead, we grant a decree to the appellant against the respondents for payment of Rs. 9856-8-3 with subsequent interest at 51/2 per cent per annum from the date of plaint till the date of payment.
29. Although the appellant has succeeded in the appeal,we direct both the parties to bear their costs in this courtas that appears to us to be the most equitable order Inregard to costs. But as regards costs of the trial courtwe direct the defendants to pay the costs to the plaintiff.