1. This second appeal is preferred by plaintiffs Nos. 2 to 5 as the legal representatives of the deceased first plaintiff. Defendant No. 1, now also deceased, mortgaged the suit property to defendant No. 11 who obtained a decree upon it in O.S. No. 484 of 1903. The property was brought to sale and was purchased by defendant No. 12, who is said to be a clerk of defendant No. 11 benami for his employer. That sale was confirmed on 4th November 1908 but no attempt was made to secure delivery through the court. On 21st July 1909 the first plaintiff took a sale deed of the suit property from defendants Nos. 11 and 12, and this was attested by defendant No. 1, the judgment-debtor. It is said that on the same occasion cowles were executed to defendant No. 4 who is a divided brother of defendant No. 1 and to defendants Nos. 9 and 10, sons of a brother of defendant No. 1's wife. There is a promissory note, Ex. E, filed in evidence said to have been executed by these lessees at the same time and place in respect of an advance of money for cultivation expenses. A few days later, on 4th August 1909, the plaintiff leased the property, under a registered lease deed, Ex. B. to these same lessees, for a term of five years. He brought the present suit because these lessees have repudiated his title and set up the adverse title of defendant No. 1 against it. The relief prayed for was either the recovery of the property or the return of the consideration paid by him to defendants Nos. 11 and 12.
2. The learned District Munsif who tried the case came to the conclusion that neither the first plaintiff nor his vendors ever had possession of the suit property, which had remained throughout with defendants Nos. 1 to 3. Accordingly he found that the suit to recover possession was barred by Section 47 Civil Procedure Code. He further found that these latter defendants had had possession adversely for more than the statutory period, so that if a suit had lain it would be barred by limitation. The learned Subordinate Judge who first heard the appeal from that decision agreed with the District Munsif on the question of possession and of the applicability of Section 47. He gave the plaintiff a decree for the refund of the purchase money. The case then came up in second appeal to this Court and the learned Judges who heard it found it necessary to remand it to the lower Appellate Court for a re-hearing of the first appeal. The grounds for adopting this course were two fold. In the first place it was found that the lower Appellate Court, in dealing with the question of transfer of possession, had neglected to consider the documents Exs. B, C, D, and E. In the second place exception was taken to the finding with regard to limitation. Upon a re-hearing by the lower Appellate Court the latter question has been decided in favour of the plaintiff. The learned Subordinate Judge's observations upon the former question are contained in paras. 7 and 10 of his judgment.
3. In para. 7 he mentions various considerations bearing upon the question of delivery bat records no explicit finding upon that point. He then goes on to consider the applicability of Section 47 as though he had finally disposed of the question of fact whether or not delivery had taken place because it cannot be contended that if delivery had taken place, Section 47 would have application. Later on, in para. 10he deals with the specific point which arises from the attestation of the sale deed by defendant No. 1, declining to draw any inference from that circumstance that defendant No. 1 had agreed to deliver possession of the land. It appears to me that the parts of the judgment which deal with this question are open to the criticism, firstly that no clear and definite finding is recorded whether at the time when Ex. A was executed there was in substance and in. fact a delivery of the property to the plaintiff, and secondly and this I think a more grave defect that the direction issued by this court, when the second appeal came on for hearing, that the four documents, Exs. B, C, D and E, should be taken into account in disposing of the question of delivery appears, to have received no attention whatever. The most that can be said is that there is an inconclusive allusion to Ex. B in para. 10 of the judgment. I must hold accordingly that my learned brother Devadoss, J's direction has substantially not been complied with.
4. As a legal argument against the further investigation of the fact of delivery I am asked to hold that there can be no valid delivery of property after a court auction unless there has been a certification to and recognition by the executing court of the transfer of possession. In other words an endeavour is made to bring the circumstance within the terms of Order XXI, Rule 2, Civil Procedure Code. I am unable to agree that this rule has any application to such circumstances. Even if it had, the only penalty would be that which is prescribed in sub-Rule 3, namely, that the court would not recognize the adjustment. The rule does not say that the delivery itself would be null and void. But I think that the application of the rule can only be sustained by means of an argument which confounds auction-purchaser with decree-holder When the two are combined in one person, it is plainly qua auction-purchaser and not qua decree-holder that he gets possession, and that act does not therefore constitute satisfaction of the decree. Such an application of the rule would enable a decree-holder who bad once bought the property and received possession out of court to apply all over again in execution which seems absurd. I think there is no substance in this argument.
5. The plaintiff's precise case has perhaps not been very clearly stated in the plaint or elsewhere. It appears to be that on the occasion of the execution of the sale-deed possession was transferred to him by defendant No. 1 either through his vendors, defendants Nos. 11 and 12, or directly; it cannot much matter if, as alleged, all. parties were present. As I have said, I cannot find that that question has been satisfactorily dealt with in the lower Appellate Court and I cannot accede to the request that I should myself in these circumstances weigh the documentary evidence which that court has omitted to take into consideration. Reluctant though I am therefore to extend the pendency of this protracted litigation, the only course that occurs to me as fair to the plaintiff is to remand the case for a second time for the determination of this question of delivery. I accordingly remand the case to the Subordinate Judge of Narsapxir for a finding upon the issue:
Whether the plaintiff obtained possession of the suit property from defendant No. J, either directly through defendants Nos. 11 and 12.
6. Accordingly as that question is settled the further question, whether the plaintiff is entitled to recover the price of the land from his vendors, may or may not arise for consideration. That question can accordingly be dealt with, if necessary, when the finding is returned. Time six weeks for the finding and seven days for objections. [In accordance with the above order the Subordinate Judge of Narsapur submitted the following.
7. I therefore find that plaintiff did not obtain possession of the land through defendant No. 1 directly or indirectly through defendants Nos. 11 and 12. [The second appeal came on for final hearing after receipt of the finding from lower Appellate Court upon the issue referred for trial, the court delivered the following.]
8. The learned Subordinate Judge finds upon the issue referred to him that the plaintiff did not obtain possession of the land either directly or indirectly through defendants No. 11 and 12. I accept this finding. The further question therefore arises whether the plaintiff is entitled to recover the price of the land from his vendors. The learned Subordinate Judge in the judgment delivered before the remand has held that this claim is barred by limitation. It is well settled by decisions of this Court that Article 116, Limitation Act, applies to such a suit. The lower Court has taken the starting point to be the point of time from which the vendors were precluded from obtaining delivery, i.e., three years after the sale became absolute. Eeckoning from this date, 4th November 1911, it finds that more than six years elapsed before the amendment of the plaint asking for this remedy was allowed, The correctness of this position, both as regards the terminus a quo and the terminus ad quern hate been disputed before me. It is said in the first place that time began to run from the date of the sale, namely, 21st July 1909, and not from the date from which the vendors became unable to pass a good title. A reference to the sale-deed will show that while in the earlier portion of it there is a recital that the vendors have put the plaintiff in possession of the land, this is contradicted by a clause at the end which runs:
We shall put in an application for delivery and give delivery to you. Afterwards we shall bring from the court the said receipt for delivery and the certificate and give the same to you. You will have to bear the charges for the said delivery.
9. I think that it was this latter arrangement which the parties intended to be operative. No time was fixed within which delivery was to be given, and although it is true that the plaintiff might at any time after the execution of the sale-deed have sued to enforce delivery under it, so that time would begin to run for such a suit from the date of contract, I think that the learned Subordinate Judge is right in holding that the cause of action for refund of the purchase money would not simultaneously arise, but would only become available when the vendors become incapable of carrying out their undertaking. Before that occasion arose, I do not think that the vendees could have sued, alleging a breach of the contract of title, for the return of the purchase money. The point does not, seem to be covered by authority, none of the types of cases referred to in Subbaroya Reddiar v. Rajagopala Reddiar 23 Ind.Cas.570 : A.I.R. 1915 Mad.708 : 38 M 887 : 15 M.L.T. 240 : (1914) M.W.N. 376 being on all fours with this one. In Tulsiram v. Murlidhar 26 B 750 : 4 Bom. L.R. 571 the fact constituted a partial failure of consideration and time began to run under Article 97 from the time of that failure. In the present case there was neither failure nor anything analogous to failure, at any rate until the vendors lost the power to give delivery. I think accordingly that the lower Court is right, in finding that time ran only from 4th November, 1911.
9. I cannot, however, find any justification for its view that time should run up to the date of amendment of the plaint. Upon such an amendment of a plaint being allowed, whether or not it involves any question of limitation, it is well enough settled that the amendment relates back to the date of institution of the suit, This is the basis for such decisions as Sevugan Chetty v. Krishna Ayyangar 13 Ind. Cas. 268 : 36 M 378 : 10 M.L.T. 557 : 22 M.L.J. 139; Cursetji Pestonjee v. Dadhabai Eduljee 19 M. 425; Charan Das v. Amir Khan 57 Ind. Cas. 606 : A.I.R. 1921 P.C. 50 : 47 I.A. 255 : 48 C. 110 : 39 M.L.J. 195 : 28 M.L.T. 149 : 2 U.P.L.R. (P.C.)124 : 18 A.L.J. 1095 : 22 BOM. L.R. 1370 : 13 L.W. 49 : 25 C.W.N. 289 : 3 P.W.R. 1921 (P.C.) and Kisandas Rupchand v. Rachappa Vithoba 4 Ind. Cas. 726 : 33 B. 644 : 11 Bom. L.R. 1042. The respondents have attempted to meet this point by the plea that they were given no opportunity to contest the propriety of the amendment applied for. The only basis upon which this rests lies in the terms of the order which the District Munsif passed: 'No objection. Allowed subject to objection,' It is said that objections may pursuant to this order be at any time taken, but it appears to me that whatever opportunity may have existed after the date of that order, has long since gone by. At the trial of the suit itself and notwithstanding this amendment, no issue was framed regarding its subject- matter. There was an appeal by the plaintiff and No. 13 of his grounds of appeal complains that the lower Court had altogether ignored his alternative claim for the refund of the purchase money from defendants Nos. 11 and 12. Upon this appeal the Subordinate Judge's Court gave a decree for this refund. The judgment contains no allusion to any objections raised regarding the amendment of the plaint and it is to be inferred that no such objections were raised. The matter does not stop there because in the memorandum of second appeal filed by these respondents themselves, although they took exception to the decree for refund, no attempt was made to resist the claim on the specific ground now urged, that the plaint had been amended without due notice being given to them. I can accordingly find m substance in this objection and must hold that time is to be reckoned up to the institution of the plaint. So reckoning it, the claim is within time.
10. The appeal is accordingly allowed and the plaintiff will have a decree for the sum of Rs. 600, with interest at 6 per cent, from the date of the District Munsif's decree (18th September 1919) with proportionate costs throughout. As against respondents Nos. 1 to 3 the second appeal is dismissed. The plaintiff will pay their costs of this appeal.