1. This second appeal relates only to item No. 4 of the plaint. The Subordinate Judge has dismissed the plaintiff's suit on the ground of limitation. It is urged by Mr. Seshachari on behalf of the appellant that the suit is not barred against the 5th defendant as he brought the property after the institution of the suit, and 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.
2. 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 twelve years from the date of Thanjammal's death, but the suit was only against three persons. Fourth 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. Seshachari'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. Third 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 No. 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 case 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. Seshachari that it is quite sufficient to show that the party who was subsequently added as a party has 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. Seshachari. 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 No. 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 the pendency of the suit as against him. Order XXII, Rule 10 can 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.
3. The next contention of Mr. Seshachari is that the application was made to bring the 5th defendant on record on 14th June 1920, the date on which the Court re-opened 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 re-opening 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: 'Where 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;' 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. Seshachari 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 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 Vakil's 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 a 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. Seshachari. Ramkrishna Moreshwar v. Ramabai 9 Ind. Dec. 19 and Rampartab Samrathi v. Foolibai 10 Ind. Dec. 1082 have no application to the present case. When the wording of the section is very clear it is not light 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.