1. This Second Appeal relates only to item 4 of the plaint. The Subordinate Judge has dismissed the plaintiff's suit on the ground of limitation. It is urged by Mr. Seshacharri, on behalf of the appellant, that the suit is not barred against the 5th defendant, as he bought the property, after the institution of the suit. He urges that there has been a devolution of interest, during the pendency of the suit and therefore, limitation does not run against the plaintiff. The necessary dates are these : - The suit was filed on 11th December, 1919. The application to bring the 4th defendant on record was made on 23rd April, 1920 and the order on that petition was passed on 1st May, 1920. Before the order was made, 4th defendant had alienated the property to the 5th defendant and the alienation was on 15th March, 1920. The application to bring the 5th defendant on record was made on 14th June, 1920. The application was ordered on 24th June 1920. The plaintiff, who sues, as reversioner of one Thanjammal, claims this property, as the property of Thanjammal. Thanjammal died on 12th May, 1908. The suit was no doubt within 12 years from the date of Thainjammal's death, but the suit was only against three persons. 4th defendant was only subsequently added as a party. But before the 4th defendant was added, he had parted with his interest in the plaint property, in favour of the 5th defendant. In these circumstances, the question is whether the transfer was during the pendency of the suit. Mr. Seshacharri's argument is that, inasmuch as the suit was filed on 11th December, 1919, it must be considered that the alienation in favour of the 5th defendant was made pending the suit. It is difficult to follow this argument. 3rd defendant was not the owner of the 4th item, when the suit was filed. He had already parted with his interest, in favour of the 4th defendant on 15th October, 1919. So, at the time when the suit was filed, 3rd defendant had no interest at all in item 4. When he had no interest in it, how can it possibly be contended that he was sued, in respect of this property? When the defendant has no interest in a certain item of property, the plaintiff's suit, so far as that item is concerned, is infructuous. In this ease, the 4th item was in the possession not of the 3rd defendant, but in the possession of the 4th defendant, on the date of suit. So the suit could not and did not relate to the 4th item, because the owner of the property, on the date of the suit, was not made a defendant, and subsequently before the 4th defendant was made a party, he had parted with his right in favour of the 5th defendant. The same remarks made about the 3rd defendant would apply to the 4th defendant. The mere fact that the 4th defendant was made a party to the suit would not enable the plaintiff to proceed against a certain item of property, which, on the date when the 4th defendant was made a party, did not belong to him. But it is very seriously urged by Mr. Seshacharri, that it is quite sufficient to show that the party who was subsequently added as a party had derived title, during the pendency, of the suit. This overlooks the plain principle that a suit can only relate to the property, which is in the possession of, or claimed to be the property of the defendant. The suit cannot possibly cover or relate to property, which, on the date of the plaint, did not belong to the defendants on record. It is unnecessary, in this view, to consider the various cases relied upon by Mr. Seshacharri. If his contention that there has been a devolution of interest pending the suit is correct, no doubt the plaintiff would be in time. But there has been no devolution of interest or transfer of interest, during the pendency of the suit, so far as item 4 is concerned. As I have already remarked, the interest in the property passed to the 5th defendant, before the 4th defendant was made a party. Therefore, the sale to the 5th defendant by the 4th defendant was not during pendency of, the suit, as against him. Order 22, Rule 10 can only apply to the assignment of interest in property, by a defendant on record and not to the assignment of interest, by a person, who is not a party to the suit, at the time of the assignment.
2. The next contention of Mr. Seshaeharri is that the application was made to bring the 5th defendant on record, on 14th June, 1920, the date on which the Court reopened after the summer vacation, and the 12 years period from the date of Thanjammal's death expired on 12th May 1920 and the application having been made on the first day after the reopening of the Court, the plaintiff's suit is within time. The question is whether the period of limitation ceases to run on the date when the application to bring a new party on record is made, or on the date, when the party is so brought on record. In this connection, the wording of Section 22 of the Limitation Act is important. Section 22(1) reads thus:
When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
3. The language of the section being clear that the suit shall be deemed to have been instituted, when a person is made a party, can it be said that the limitation period ceases to run the moment an application is made? The mere fact that an application is made would not stop the running of the period of limitation. It is only when a new party is added to a pending suit, limitation will cease to run. It is urged by Mr. Seshacharri, that, if he files a plaint within time, the 'mere fact that the defendant has not been served would not in any way bar his right to sue. No doubt in the case of a plaint the period of limitation ceases to run on the date on which the plaint is filed. It is immaterial when the defendant is served. The defendant may evade service for a long time, or the Court or the office might cause delay in serving the summons on the defendant. The Limitation Act is quite clear on this point. In the case of a person already on record, the day on which the suit is filed limitation ceases to run; but in the case of a person newly added as a party to a pending suit, Section 22(1) clearly says that the suit shall as regards him be deemed to have been instituted, only when he is so added. So, the mere application to add a party would not satisfy the requirements of Section 22(1). It is necessary, in order to prevent limitation from running against a new party, that he should be actually added as a party. Till he becomes a party to the suit, by an order of Court, it cannot be said that he is a party to the suit. In the case of an ordinary plaint, if the plaint contains the names of the defendants, the moment the plaint is filed in Court the period of limitation ceases to run, because the plaintiff has done whatever is required of him to do. He has filed the plaint in Court and the Court has to do the needful according to law. It cannot be said that a suit is instituted, if the plaintiff, who wants to file it in Court, puts it into his drawer or keeps it in vakils' chambers. In the same manner, when a person is sought to be added as a party, the person becomes a party only when he is actually brought on record as party. That being clear from the wording of Section 22(1), I think it unnecessary to refer in detail to the cases relied upon by Mr. Seshacharri. Ramakrishna Moreshwar v. Ramabai (1893) 17 Bom. 29 and Rampartab Samrathrai v. Foolibai and Goolibai (1896) 20 Bom. 767 have no application to the present case. When the wording of the section is very clear, it is not right that a Court should try to get round it. In this case, granting for argument's sake that the order of the Court is sufficient to make the 5th defendant a party, the order was made only on 24th June, 1920, i.e., after the lapse of 12 years. It is unnecessary to consider the question, whether a mere order to make the defendant party is sufficient to make him a party. It has been suggested by Mr. Krishnaswami Iyengar, who appears for the respondent, that the plaintiff may not take the necessary steps; of course, if he does not do so, the person sought to be added will never become a party. I do not think it is necessary in this case to consider the question whether a person, who is sought to be made a party, becomes a party, only on the date when he is served. It is unnecessary to go into this question, even granting for argument's sake that as soon as the Court makes the order that a person should be made a party, he does become a party. The order was made more than 12 years from the date of Thanjammal's death and the plaintiff's suit is therefore barred.
4. In the result, the appeal fails and is dismissed with costs.