Muttusami Ayyar, J.
1. This was a suit by a purchaser at a private sale from the son of a purchaser at a Court sale, who had not obtained possession from the judgment-debtors. Both the Courts below held that it was barred by Article 138, second schedule of the Act of Limitations. I think that the decision is correct and that the appellant's contention that Article 136 governs the claim is not tenable. If the suit was brought by the auction purchaser, Article 138 would clearly apply. There is no reason to think that when it is brought either by his son or a purchaser claiming under him, the article ceases to be applicable. Reading Articles 136
Description of Suit. | Period of | Time from which period begins to run.
| limitation. |
136. By a purchaser at a private | Twelve years ... | When the vendor is first entitled to
sale for possession of immoveable | | possession.]
property sold, when the vendor | |
was out of possession at the date of | |
[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. | |
2. The only point urged before us is that the lower Courts are in error in holding that the plaintiff's suit is barred by limitation. It is contended that Article 136 of Schedule II of the Limitation Act, and not Article 138 as held by the lower Courts, is applicable to this case.
3. Plaintiff sues as assignee of the purchaser at a sale in execution of a decree, and it is contended that, though Article 138 might apply to a suit by the purchaser himself, it must be read strictly, and so read is inapplicable to such purchaser's assignee. It has been held that the term 'mortgagee' in Article 148
Against a mortgagee to redeem or | Sixty years... | When the right to redeem or to
to recover possession of immoveable | | to recover possession accrues.
property mortgaged. | | Provided that all claims to redeem,
| | arising under instruments of mortgage
| | of immoveable property situate in
| | British Burma, which have been
| | executed before the first day of May
| | 1803, shall be governed by the rules of
| | limitation in force in that province
| | immediately before the same day.]
I.L.R. 9 All 97
I.L.R. 11 All. 423
4. Article 136 is intended to apply to cases in which the vendor is at the time of sale not entitled to possession of the property sold, and consequently the institution of a suit for possession has to be deferred till the right of any third person to its possession has determined. Had plaintiff's vendor purchased the property under such circumstances, no doubt plaintiff as his assignee would be entitled to the benefit of the further time allowed by Article 136. But this is not plaintiff's case. His contention is merely that as his vendor was not entitled to possession of the property purchased by him till the sale was confirmed, the limitation period must be counted from the date of confirmation of the sale, and not from the date of the sale itself. This is, however, opposed to the express provisions of Article, 138--Kishori Mohun Roy Chowdhry v. Chunder Nath Pal I.L.R. 14 Cal. 644 Seru Mohun Bania v. Bhagoban Din Pandey I.L.R. 9 Cal. 602.
5. It is not denied that the judgment-debtors were in possession at the date of the sale at which plaintiff's vendor, the first defendant, purchased the property. The first defendant has allowed the suit to proceed ex parte so far as he is concerned. The other defendants who have opposed the suit are the parties in possession of the property. If this suit had been brought against them by first defendant, it would clearly have been barred under Article 138, and it is similarly barred under that article when brought by plaintiff as assignee of the first defendant. This second appeal fails, therefore, and must be dismissed with costs.