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Sarat Chandra Bandopadhya Vs. Harish Chandra Roy and ors. and Satish Chandra Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.605
AppellantSarat Chandra Bandopadhya
RespondentHarish Chandra Roy and ors. and Satish Chandra Roy
Excerpt:
civil procedure code (act xiv of 1882), section 319--symbolical possession--limitation. - .....would obviously be out of time. if, on the other hand, it is taken to run from the date of the delivery of possession to the purchaser, i.e., 23rd july 1904, the suit is not barred.2. the code of 1882 is applicable to the case. it is admitted that the property was in possession of tenants under the defendants-judgment-debtors. section 319 was, therefore, the section which applied to the delivery of possession in this case. the purchaser appears to have made an application for delivery of possession but to have made it more than three years after his right to make that application had accrued. he would, therefore, be out of time under article 178 of the limitation act (xv of 1877). section 319, however, does not like section 318 prescribe that the court's order shall be made on.....
Judgment:

1. The only question in this case is one of limitation. It appears that the defendants were the owners of the property in dispute, an 8-anna share in a sikmi taluq. That property was sold for arrears of rent at the instance of the landlord Radhika Mohan Roy on 9th May 1899 and purchased by the decree-holder himself. The sale was confirmed on 20th June 1899. The sale certificate was issued on 6th May 1904. Symbolical possession was given under Section 319 of the Code of Civil Procedure of 1882 on 23rd July 1904. The present plaintiff bought the property from the representative of the decree-holder on 8th June 1906, and filed the present suit to recover possession on 9th March 1914. If the time be taken to have run from the date of the confirmation of the sale on 20th June 1899 the suit would obviously be out of time. If, on the other hand, it is taken to run from the date of the delivery of possession to the purchaser, i.e., 23rd July 1904, the suit is not barred.

2. The Code of 1882 is applicable to the case. It is admitted that the property was in possession of tenants under the defendants-judgment-debtors. Section 319 was, therefore, the section which applied to the delivery of possession in this case. The purchaser appears to have made an application for delivery of possession but to have made it more than three years after his right to make that application had accrued. He would, therefore, be out of time under Article 178 of the Limitation Act (XV of 1877). Section 319, however, does not like Section 318 prescribe that the Court's order shall be made on application by the purchaser. Whether this was an intentional difference in the sections or not it is not necessary to discuss. There is, how-ever, this distinction that under Section 318 the presence of the purchaser would be necessary before he could be put in possession by the Court. It may have been thought, therefore, necessary that in such a case he must first apply for delivery of possession before the Court could give it to him. Under Section 319 all that has to be done is to affix a copy of the certificate of sale in some conspicuous place on the property and proclaim to the occupant by beat of drum or some other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser. This could be done by the Court of its own motion and without the intervention in any way of the purchaser. In any case it has not been shown us that any period of limitation was fixed by the law as it then stood for an order by the Court under Section 319, If that be so, it cannot be said that the order of the Court dated 23rd July 1904 giving symbolical possession was without jurisdiction. It is conceded by the learned Pleader for the appellant that if this view be taken, the point of limitation cannot be successfully pressed.

3. The appeal is accordingly dismissed with costs.


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