1. The facts of this case as found by the Courts below are shortly these: Appellant purchased the land in dispute at the Court-sale held in execution of the decree in Original Suit No. 654 of 1873 on the file of the District Munsif of Narsapur. The property was put up to sale and knocked down to appellant as the highest bidder on the 20th June 1978. It was, however, on the 31st March 1879 that the sale was confirmed. The sale certificate hears that date whilst this suit was brought on 1st April 1891. The question for determination is whether the Courts below are right in holding that the suit was barred by Article 138 of the second schedule of the Act of Limitation. For appellant (plaintiff) it is urged first, that there is no evidence to show that the judgment-debtor was in possession of the property in dispute at the date of the Court-sale, and that even if that article applied, the sale referred to in the third column is not the actual sale but the sale which has been confirmed and became absolute.
2. Article 1371 premises an execution sale at the time when the judgment-debtor is out of possession, and Article 138 t presupposes a case in which the judgment-debtor is in possession :of the property sold. According to the former the time from which the period begins to run is when the judgment-debtor becomes first entitled to possession, and according to the latter time runs from the date of the sale. Referring to appellant's contention that defendants were out of possession for four years after the sale, the Subordinate Judge observes that the plaint did not state so, and that the allegation in the memorandum of appeal was an after-thought. The first issue fixed in this case was whether the suit was barred, and it was thus open to appellant to have proved that the judgment-debtor had been out of possession for four years after the sale, but he tendered no evidence on the point. The onus of proof was on appellant, and we cannot say that the Subordinate Judge was in error in considering his allegation as untrustworthy, especially when the plaintiff himself stated before the District Munsif that he asked the defendants to quit the land in dispute until four or five years after taking the certificate and not subsequently.
3. The next question is whether assuming that Article 138 is applicable to this suit, the claim is barred. If the word sale in the third column of that article means actual sale, the claim is clearly barred; but, if it means the sale which is confirmed, the suit is in time. In its plain ordinary meaning the word sale means the auction-sale itself, and it is used in Article 166 in that sense. Article 12, which refers to a sale that is confirmed, indicates also that the Legislature intentionally used the word without any qualification.
4. But it is argued that under Section 316 of the Code of Civil Procedure the title to the immoveable property purchased vests in the purchaser from the time when the sale is confirmed and not before, and as no purchaser can sue for possession before the property passes to him, the term sale in column 3 of Article 138 must be taken to signify, as in Article 12, the sale which is confirmed. The direction in Section 316 of the Code of Civil Procedure concerning the date on which the title to immoveable property purchased at a Court-sale vests is not to be found in Act X of 1877, of which the corresponding section provided for the grant of a certificate, stating ' the name of the person who, at the time of sale, is declared to be the purchaser and the date of such sale.' With reference to that section it has been held that when the sale is confirmed it relates back to the auction-sale, and the property vests in the purchaser from the date of such sale. It was so held by the High Court at Calcutta in Kishori Mohan Roy Chowdhry v. Chunder Nath Pal I.L.R. 14 Cal. 644 and by a Full Bench of the same Court in Bhyrub Chunder Bundopadhya v. Soudamini Dabee I.L.R. 2 Cal. 145 It was by Act XII of 1879 that the clause ' title shall vest in the purchaser from the time when the sale is confirmed' was introduced into Section 316. Though it was then open to the Legislature to have altered the word sale in the third column of Article 138 of the Limitation Act, yet they have not done so. The same word cannot mean the actual sale in one place and the sale which is confirmed in another place in the same Act. The omission to alter the word sale into sale which is con' firmed may be due to oversight, but the result of the grammatical interpretation must in law prevail when there is no ambiguity. We observe also that the sale in this case took place in June 1878, whereas Section 316 was not modified till 1879.
5. We are of opinion that the Courts below are right in holding that the suit is barred by Article 138 of the Indian Limitation Act, and we dismiss this appeal with costs.
1. [Article 197:
Description of suit. |Period of | Time from which period begins
|limitation | to run.
Like suit by a purchaser |Twelve years.... | When the judgment-debtor is first
at a sale in execution of a| | entitled to possession.]
decree, when the | |entitled to possession.]
udgment-debtor was out of | |
possession at the date of | |
the sale. | |
2. [Article 138:
By a purchaser of land at |Twelve years.... | The date of the sale.]
a sale in execution of a | |
decree, for possession of | |
the purchased land, when | |
the judgment-debtor was in | |
possession at the date of | |
the sale. | |