1. On 17th April 1953, the first defendant entered into an agreement with the plaintiff to sell to the latter a piece of immoveable property. Ignoring the agreement) the first defendant sold the property on 4th June 1953 to the second defendant, who, in his turn, sold it on 2nd October 1955 to the third defendant. The third defendant too, in turn, sold the property to the fourth and fifth defendants, who are the appellants in this court. The first respondent, who was the plaintiff, brought the suit' originally against the first defendant for specific performance of the agreement. Pending the suit the first defendant died. Or coming to know that the first defendant had sold the property to the second defendant, the first respondent got the second defendant impleaded as a party to the suit. This was within three years of the date of the agreement. The second defendant too died pending the suit and no legal representatives of the second defendant were brought on record. The position, therefore, was that the suit stood abated, so far as the first and second defendants were concerned. The first respondent, again coming to know that the second defendant had transferred the property to the third defendant, took out an application to implead him as the third defendant. This application was ordered on 2nd August 1958, which was more than three years from the date of the agreement sought to be specifically enforced. The suit was decreed, and the lower appellate Court confirmed that decree.
2. In this appeal by the defendants 4 and 5, who purchased from the third defendant, it is urged that the suit against the third defendant was barred. The lower appellate court seems to have disposed of the question of limitation rather cryptically and without properly applying its mind to the question. All that it said was that the present suit had been filed within 3 years of the suit agreement and as the plaint was presented on 26th May 1956, the suit was in time taking into account the intervening summer, vacation. This, to say the least, was not a proper disposal by the lower appellate court of the question of limitation. The trial court, however, would appear to have done a little better, but it got over the question of limitation by reference to Section 91 of the Trusts Act.
3. Section 22 of the Limitation Act makes it clear that, where a defendant is added as a party to a suit, it should be deemed to have been instituted when he was so made a party. Order 1, R. 10 (2), C. P. C., applies this rule of limitation. It is clear, therefore, that the suit so far as the third defendant was concerned, should be deemed to have been instituted only on 2nd August 1958, when that defendant: was made a party to the suit. That date was beyond the period of three years from the date of the agreement. The suit was, therefore, clearly barred, so far as the third defendant was concerned.
4. In my view, Section 91 of the Trusts Act does not affect the principle of Section 22 of the Limitation Act, All that Section 91 implies is that, when a person purchases property from another with notice of an existing contract affecting such property, of which specific performance could be enforced, such person must hold the property for the benefit of the person in whose favour the contract has been entered into and to the extent necessary to give effect to the contract. It is on the basis of this obligation enjoined by Section 91 of the Trusts Act, the parties (Sic) has grown to direct, in suits for specific performance that not only the person who agreed to sell immoveable property, but also the person, to whom contrary to that agreement the owner had sold the property, should join in the execution of the sale deed, in favour of the person entitled to specific performance. That is what was held in Durgaprasad v. Deepchand : 1SCR360 . Nothing was said in that case as to limitation.
5. The second appeal is allowed and the judgments and decrees of both the courts below are set aside. The .suit will stand dismissed. There will be no costs throughout. No leave.