Walter Salis Schwabe, K.C., C.J.
1. This second appeal is referred to me by reason of a difference of opinion between Spencer and Krishnan, JJ., the referring Bench. The question referred is whether the suit is barred by limitation.
2. The first Article of the schedule to the Limitation Act which is relied upon is Article 11. The effect of that article is that, where an order is made under the Civil Procedure Code, 1908, on a claim preferred to or objection made to the attachment of property in execution of a decree, the limitation is one year from the date of the order. The facts of this case are these: Property which was mortgaged to the present plaintiff was seized in execution by the present defendant and brought to sale. The sale was advertised to take place on the 20th of November 1913. On that day an application was filed on behalf of the plaintiff asking that the proceeds of the sale which was about to take place should be held in Court because he claimed they belonged to him under hypothecation. I have very considerable doubt whether, in fact, that was filed before or after the actual sale, and I am rather inclined to the view that it was filed after the sale, because when the matter came before the Court next day the Court said that the sale was already concluded and the decree-holder had got his amount and dismissed the application. It is difficult to understand how the Court could have done that if the petition was in time and I am told that under Order XXI it is the recognized practice that you are too late altogether if you take your proceeding after the sale has taken place. If the petition was out of time it is quit; easy to understand the order of the District Munisiff. Otherwise it is very difficult to understand how the District Munsiff came to make that order. But however that may be, one thing, to my mind, is quite clear that the District Munsiff dismissed that application not on the ground of delay or anything of that kind, but on the ground that he had no jurisdiction to hear it. He says: the sale has taken place, I cannot hear this - that is how I interpret the order that he has made, and it is quite clear that he did not hear it. He did not consider the question whether or not there was a mortgage or whether or not the present plaintiff was entitled to the property or the proceeds of the sale. It was never considered at all. That being so, in my judgment, there is no order on a claim preferred within the meaning of the Limitation Act and no order within the words of Rule 63 Order 21 on a claim or objection preferred against the persent plaintiff. Rightly or wrongly, in my view, the District Munsif simply said, 'I will not hear you' It is argued, however, that, notwithstanding that, I am bound by the decision of the Full Bench of this Court in Venkataratnam v. Rangauayakamma I.L.R.(1918) Mad. 985 to hold that this was an order coming within the rules and Article 11 of the Limitation Act. I do not read that case to decide anything of the kind. What that case did was to take an order which was made by the District Munsif and referred to as Ex. V which I have sent for and examined, and treat that order as a refusal of the application on the ground that there had been laches or delay which brought the matter under the proviso to Order 21, Rule 58 which is in these terms: 'Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed', and the Full Bench held, and held only, that where a decision is given on the ground that the matter has been designedly or unnecessarily delayed, that is a decision and an order against the applicant under Rule 63 to which Article 11 apples. I think this is quite clear from the judgment of the learned Chief Justice and Seshagiri Aiyar, J. The latter says. 'The language of Order 21, Rule 63, leaves little room for doubt that all orders which negative the right set up by the claimant or the decree-holder are within the rule'. Assuming that to be rightly decided, it does not affect this case, because there is no order, in my judgment, in this case negativing the rights set up by the claimant. It follows that I agree with Spencer, J. that this suit is not barred under Article 11 of the Limitation Act.
3. Another point was taken and I have held that it is covered by the terms of the reference though I confess I have very grave doubt on that subject because Spencer, J. decided it one way and Krishnan, J. said nothing about it at all; but I accept what I am told, that he having said nothing about it might have been going to differ about it, and it was unnecessary for his decision to say anything about it at all, in the view he took of the case on the other point, and that on its being pointed out to the Court, the Court answered, 'well, your point is covered by the Order of Reference.' Therefore, I think it is right that I should deal with the matter and save the parties from further expense and further hearing. On this matter too I agree with Spencer, j. I think the matter is really concluded by the decision of the Privy Council in Barhamdeo Prasad v. Tar a Chand I.L.R. (1913) Cal. 654. It would indeed be a singular thing if a person in possession of mortgaged property by going through the form of a sale by Court auction to himself got the mortgaged property in fact, but also by reason of the sale got the money, and were enabled to say when attacked by the mortgagee, 'I have not got the mortgaged property at all; I have got some money and the article barring suits for money had and received is the article that applies; and I escape from liability and can retain both the money and the property.' But the learned vakil argues, 'you cannot sue for the money but only for the property, and if you sue for the property, you cannot succeed in this action but you must bring another.' In Barhamdeo Prasad v. Tara Chand I.L.R.(1913) Cal. 654, it was held that proceeds of mortgaged property for the purpose of the Limitation Act are to be treated as within the meaning of Article 132 of the schedule to the Limitation Act. An action to enforce payment of money charged upon immoveable property, says the Privy Council, is within the meaning of Article 132. This is really an action to enforce payment of money charged upon the property. The money was charged on the property. The defendant has got the property and I cannot see how by himself converting the property into money he could bring into play articles of the Limitation Act other than those which would apply if he had not converted it into money.
4. I, therefore, answer the question of the Referring Bench by saying that the suit is not barred by Limitation. I, therefore, hold that this appeal must be dismissed with costs.