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Neckbar Vs. Prakash Nag Choudhari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1930Cal86
AppellantNeckbar
RespondentPrakash Nag Choudhari
Cases ReferredBaijnath Sahai v. Ramgut Singh
Excerpt:
- .....and which the decree-holder had purchased in execution of his decree was barred by limitation. the sale was held on 19th may 1922. it was confirmed on 23rd june 1922. on 18th june 1925 an application was made by the judgment-debtor to set aside the sale. that application was dismissed on 29th april 1926 by the trial court. the judgment-debtor appealed against that decision and that appeal was also dismissed on 15th september 1926. the decree-holder made the application for delivery of possession on 28th february 1927. the objection of the judgment-debtor is that this application is barred by limitation. both courts have answered the question in the negative and have allowed the application of the decree-holder.2. there is no question that article 180, schedule 1, lim. act, applies to.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the judgment-debtor against the order of the Subordinate Judge affirming that of the Munsiff by which he rejected the objection of the judgment-debtor that the application made by the decree-holder for delivery of possession under Order 21, Rule 95 of a certain property which was in the occupancy of the judgment-debtor and which the decree-holder had purchased in execution of his decree was barred by limitation. The sale was held on 19th May 1922. It was confirmed on 23rd June 1922. On 18th June 1925 an application was made by the judgment-debtor to set aside the sale. That application was dismissed on 29th April 1926 by the trial Court. The judgment-debtor appealed against that decision and that appeal was also dismissed on 15th September 1926. The decree-holder made the application for delivery of possession on 28th February 1927. The objection of the judgment-debtor is that this application is barred by limitation. Both Courts have answered the question in the negative and have allowed the application of the decree-holder.

2. There is no question that Article 180, Schedule 1, Lim. Act, applies to such an application as this. The question is when the period of limitation begins to run. The words in the third column of the Limitation Act are when the sale becomes absolute. The contention on behalf of the appellant is that time runs from 23rd June 1922 when the sale became absolute under the provisions of Order 21, Rule 92. If that is so, then the application, which had been made nearly live years after that date is clearly barred by limitation. It is also contended as a subsidiary proposition that even if it be held that the right to apply for delivery of possession was suspended from the date when the judgment-debtor made his application for setting aside the sale on 18th-June 1925 till the date of the final disposal of his application by the appellate Court, even then the period of three years had expired before 28th February 1927, and in any view of the case the application is barred, by limitation the learned Subordinate Judge has held that the period commenced from the final disposal of the application for setting aside the sale made by the judgment-debtor, that. is, on 15th September 1926, and therefore the application is within time. The learned Subordinate Judge relies upon the Full Bench case of the Madras High Court Muthu Korakkai Chetty v. Madar Animal [1920] 43 Mad. 185 and in particular the observations made in the judgment of the Officiating Chief Justice, Sir Abdur Rahim. In that case the facts were similar to the present case. The question which was referred to the Full Bench for answer was:

whether the existence of the cause of action for an application for delivery of possession to which Article 180, Schedule 1, Lim. Act, applies is suspended during the pendency of proceedings for setting aside of the sale.

3. In answering that question the Officiating Chief Justice made the observation which was assented to by the majority of the Judges that the period of limitation should be computed from the date of the order disallowing the petition for setting aside the sale on the ground of, fraud and not from the date of the first confirmation. Oldfield, J. was of the' contrary opinion and he held that the answer should be that when once a cause of action has arisen it is not suspended by later events. Sadasiva. Ayyar, J. held that the cause of action was suspended during the interval of the pendency of the application for setting aside the sale.

4. On behalf of the respondent it is urged very forcibly that the whole cause of action should be held to be suspended up to 15th September 1926. Reference has been made to the case of Surno Moyee v. Shooshee Mokhee Burmonia [1868] 12 M.I.A. 244. The question in that case, however, was quite different from the present one. There the zamindar sold a patni under Regn. 8 of 1819 for arrears of rent. The patnidar brought a suit for settting aside the sale. That was allowed after a good deal of litigation when the patnidars who had been dispossessed by the purchasers were restored to possession with mesne profits to be paid by the purchasers. After the restoration, the zemindar brought a suit for rent for the period during which these patnidars were out of possession. It was held by the Judicial Committee that the cause of action accrued at the date when the auction sale was set aside and limitation should run from that date. It was held that when the purchasers were in possession and the old patnidars were out of possession by virtue of the sale under Regn. 8 of 1819, the landlord had no cause of action as she was in the position of a person whose claim had been satisfied. It is, however, unnecessary to discuss the question as regards the suspension of the period of limitation which has been decided in some cases by the Privy Council. The cases fall under two classes where there is suspension of the running of the time under certain circumstances and where the cause of action has arisen afresh at a certain time. The case on which the respondent very strongly relies is that of Baijnath Sahai v. Ramgut Singh [1896] 23 Cal. 775.

5. In that case the question was whether a suit brought by a person for setting aside a revenue sale was barred under Article 12, Schedule 1, Lim. Act, The facts shortly stated were these: The revenue sale was held on 24th September 1882. It purported to have been confirmed by the Commissioner on 25th January 1884 who refused the petition of the owner for setting aside the sale. The plaintiff then being dissatisfied with the order of the Commissioner made an application to the Board of Revenue. The Board of Revenue set aside the order of the Commissioner confirming the sale on 12th August 1884 and sent back the proceedings before the Collector. The result was that the order of the Collector confirming the sale on 25th January 1884 was discharged and the sale remained unconfirmed. The Collector on receiving the proceedings back refused to confirm the sale. There was an appeal again to the Commissioner who held that he had no jurisdiction to entertain the appeal. Then the defendant in the suit appealed again to the Board of Revenue, and on that occasion the Board of Revenue reversed their previous judgment holding that everything that had been done by them was without jurisdiction. They discharged their previous order and they also discharged the subsequent order of the Collector, the result of which was that they confirmed the order of the Commissioner confirming the sale which was passed on 25th January 1884. This order was made on 21st August 1886 and from that date the order of the Commissioner of 25th January 1884 became an operative order. Upon these facts, their Lordships held that

there was no final conclusive and definitive order confirming the sale while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of 25th January 1884 became definitive and operative by the final judgment of the Board of Revenue on 21st August 1886 or (in other words) that for the purpose of the law of limitation there was no final or definitive confirmation of the sale until that date

6. Strong reliance has been placed upon these words, and it is contended that there was no final or definitive confirmation of the sale in this case until the application of the judgment-debtor to set aside the sale was dismissed finally in September 1926. Now the difference between the case of Baijnath Sahai v. Ramgut Singh [1868] 12 M.I.A. 244 and this case is that in Baijnath Sahai's case [1920] 43 Mad. 185 the order which the plaintiff wanted to set aside by his suit was actually set aside by the Board of Revenue, and it was, after vicissitudes of fortune, that the order was finally restored on 21st August 1886. Under those circumstances it seems to me that their Lordships held that the plaintiff could not bring a suit for setting aside the order confirming the sale of January 1881 before August 1886. That order was really not in existence in the interval, it having been set aside by the Board of Revenue in August 1884. To my mind that is the distinction between that case and and the present case, that in the present case the order confirming the sale was never set aside but remained an effective order throughout. The sale became absolute, as I have already stated, on 23rd June 1922. Up to 18th June 1925 nothing happened and in the ordinary course the application for delivery of possession would have been barred after the lapse of about five days if the judgment-debtor had not made any application for setting aside the sale. The mere fact that the judgment-debtor had made such an application did not prevent the decree-holder from making his application for delivery of possession. In Baijnath Sahai's case [1920] 43 Mad. 185 when there was no order confirming the sale in existence the plaintiff could not bring a suit for setting aside the sale. Here the decree-holder could always make his application for delivery of possession, and I do not see any reason why the provisions of Article 180 should not be given effect to.

7. It is, however, contended on behalf of the respondent that under Rule 92, Order 21, the Court can make an order confirming the sale only when no application is made or where such application is made and disallowed and thereupon the sale becomes absolute. It is urged that in the present case although the Court made an order confirming the sale which had the effect of making the sale absolute still an application was made under Rule 90 and therefore the order which was made under Rule 92 was not an effective order. The answer to that contention seems to me that the meaning of that Rule is that when no such application is made under the ordinary rules of limitation, the order confirming the sale should be made. Article 166 gives the period of 30 days for making such an application, and when no application is made within that period, the Court has to make the order under Rule 92. I do not think that, if for some reason or other, that is by the operation of Section 18, Lim. Act. or for some other reason, the judgment-debtor prays for the time for making the application for setting aside the sale being extended, the order which has already been made confirming the sale should be considered as ineffective. That order should be considered to be effective so long as it is not set aside. With very great respect I am unable to agree with the opinion of the majority of the Judges in the case of Muthu Korakkai Chetty [1920] 43 Mad. 185 which was not really an answer to the question referred to the Full Bench. It is not necessary for me to decide in this case whether the period of limitation was suspended during the pendency of the hearing of the application of the judgment-debtor for setting aside the sale, for assuming that to be so the present application would be barred. In my opinion, the period of limitation in this case commenced to run from 23rd June 1922.

8. On all these grounds in my opinion the application made by the decree-holder is barred by limitation. The appeal is allowed and the application of the decree-holder is dismissed with costs in all Courts. The hearing fee is assessed at three gold mohurs.

Bose, J.

9. I agree.


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