1. The question of limitation raised in this suit is one of first impression. The suit is for specific performance. The 1st defendant was the person who agreed to sell the plaint house to the plaintiff. This was on 17th February 1907. The 7th defendant bought the property in execution of a money decree against the owner of the property on 17th April 1913. It has been found that he had knowledge of the agreement in favour of the plaintiff. The suit was instituted on 26th November 1913, and that, as found by the Subordinate Judge was within three years of the date of refusal on the part of the 1st defendant to perform the contract. The 7th defendant was not originally made a party to the suit, but was added on the 22nd December 1914, which would be more than three years from the date of refusal to perform the contract on the part of the 1st defendant. The question is whether the suit ought to be dismissed against the 7th defendant as being barred.
2. Article 113 which is the only article applicable to this case, says that, for suits for specific performance, the limit of time is three years from the date fixed for the performance (which is not the case here,) or, if no such date is fixed, when the plaintiff has notice that performance is refused. The suit was filed within three years of the refusal to perform the contract; and so far as the 7th defendant is concerned, it is not suggested that he had refused performance of the contract more than three years prior to the date on which he was joined. It is argued that the 7th defendant is a necessary party to the suit, and that the decree must be both against the 1st defendant who entered into the contract and the 7th defendant who purchased the property with notice of the contract. It is not necessary for us to decide whether he is a necessary party or merely a proper party, for even on the supposition that he is a necessary party we do not see how it can be said that the suit is barred as against him unless he is able to show that it has been instituted against him more than three years after the refusal on his part to join in the conveyance to perfect the contract. He is not the person who is primarily the party to perform the contract. He is joined under the provisions of Section 27 of the Specific Relief Act in order that the plaintiff may have full relief's and may not be driven to a separate suit against him. The plaintiff suing for specific performance may not know to what person the owner of the property has purported do sell it after entering into the contract with him. It would be altogether unreasonable to hold that though the suit was brought within three years from the date of the refusal on the part of the owner of the property who entered into the contract, yet the plaintiff would not be entitled to any remedy against a person who subsequently bought the property with notice of such contract even though the plaintiff did not know the existence of such a person until after the expiration of three years, or until after the institution of the suit. The result, no doubt, of holding that time is to be reckoned against the purchaser with notice from the date of refusal to perform the contract on the part of the person who entered into the contract of sale except where there has been a refusal on the part of the purchaser with notice within the meaning of the article, would be that the plaintiff would be at liberty to proceed against the purchaser with notice even after three years have expired. But we do not think that such a purchaser has much to complain of. If however, he has been in possession and enjoyment of the property for twelve years, he may plead limitation on that score to any suit for recovery of possession. But that is another matter. We therefore hold that the conclusion of the trial Judge on the question of limitation is wrong.