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Kishori Mohun Roy Chowdhry and ors. Vs. Chunder Nath Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal644
AppellantKishori Mohun Roy Chowdhry and ors.
RespondentChunder Nath Pal and ors.
Cases ReferredSee Lolit Coomar Bose v. Ishan Chunder Chuckerbutty
Excerpt:
possession, suit for - suit for possession by purchaser at sale in execution of decree--civil procedure code (act xiv of 1882), sections 11, 318--concurrent remedies-limitation act (xv of 1877), article 138, schedule ii. - .....which would bring it within twelve years. as to that a question arises as to the meaning of the word 'sale' in article 138 in the second schedule to the limitation act. that article provides that in a suit by a purchaser of and at a sale in execution of a decree, for possession of the purchased land, when the judgment-debtor was in possession at the date of the sale, the limitation is twelve years from the date of sale. the only question is, whether the word 'sale' means auction sale, or when the sale was confirmed. in ordinary language,' sale 'means auction sale, that is to say, the transaction which completes the contract, although the conveyance is not complete until a subsequent time when the sale is confirmed. that being the ordinary meaning of the word, it is necessary to look.....
Judgment:

W. Comer Petheram, C.J.

1. This is a suit to recover possession of two parcels of property purchased by the plaintiff at auction sales some years ago. One of them was purchased at an auction sale on the 18th July 1871, and the sale was confirmed on the 22ud August 1871. The second parcel was purchased on the 21st July, 1871, within twelve years of suit, which was instituted on the 20th July 1883. So that as to the first parcel, that is to say the house, the question arises whether the suit is barred by limitation, it being admitted that the auction sale took place more than twelve years before suit, although the sale was confirmed on a date which would bring it within twelve years. As to that a question arises as to the meaning of the word 'sale' in Article 138 in the second schedule to the Limitation Act. That Article provides that in a suit by a purchaser of and at a sale in execution of a decree, for possession of the purchased land, when the judgment-debtor was in possession at the date of the sale, the limitation is twelve years from the date of sale. The only question is, whether the word 'sale' means auction sale, or when the sale was confirmed. In ordinary language,' sale 'means auction sale, that is to say, the transaction which completes the contract, although the conveyance is not complete until a subsequent time when the sale is confirmed. That being the ordinary meaning of the word, it is necessary to look into the Limitation Act to see how the word is used. Apparently it is used for the first time in article 12, where in a suit to set aside any of the sales there mentioned, limitation runs from the date that the sale is confirmed or would, otherwise, have become final and conclusive, had no such suit been brought. So that, upon the face of the Schedule, we have a distinction between the sale and the confirmation of sale, that is to say, we have the contract to sell that is the bidding at the auction which forms the contract, and the confirmation which does not take place until some time after.

2. Article 166 deals with this matter. On an application to set aside a sale in execution of a decree on the ground of irregularity in publishing or conducting the sale, or on the ground that the decree-holder has purchased without the permission of the Court, we have it that the time from which limitation is to run is the date of the sale. It is clear that the date of the sale in this Article must mean the date of the auction sale, that is to say when the bidding took place, because a suit to set aside that sale might be brought before the sale is confirmed. So that the word 'sale' there must mean the time of the auction sale. Then we have it that, in the Schedule to the Act, 'sale' has a different meaning from 'confirmation of the sale.' Under article 12, in a suit to set aside the sales therein mentioned, limitation begins to run from the confirmation of the sale, whereas in Article 38 the word 'sale' only is used. Therefore we think the word ' said 'must have the same meaning as in the other portions of the Schedule and which it has in common language, that is, the date of the auction sale.

3. The auction sale in this case took place on the 18th July, 1871. The suit was not brought until the 20th July, 1883; that is, more than twelve years after the sale, and therefore in our opinion the suit, as far as this part of the case is concerned, is barred by limitation, and the suit must be dismissed.

4. The other part of the case is to recover possession of the land on which this house stands. The suit was instituted within twelve years from the date of sale.

5. The only question which arises on this part of the case is that it is held by the lower appellate Court that this suit cannot be maintained until it is shown that the plaintiff has exhausted any remedy that he would have under Section 318 of the Civil Procedure Code, which gives the auction-purchaser a speedy remedy to obtain possession of the land which he has purchased if it is in the possession of the judgment-debtor, and it may be taken to be admitted that there are cases which take different views of this matter. In our opinion that forms no answer to the action, because we think that, though there may be a remedy under Section 318 which the auction purchaser may put in force, still the ordinary remedies are open to him notwithstanding, and the remedies are concurrent.

6. We think that this is abundantly clear from Section 11 of the Code of Civil Procedure, which lays down that persons may have recourse to the Civil Courts for the trial of all suits of a civil nature, unless their cognizance is expressly taken away. This remedy has not been taken away by the Legislature, and therefore the other remedy is concurrent only. Article 138 of the Limitation Act refers to this very kind of case, so that it is clear that in the contemplation of the Legislature at that time this class of suits could be maintained. Therefore, so far as principle is concerned, this suit can be maintained, and proceedings not having been taken under Section 318, is no answer. In several cases the opposite view is indicated, but in no recent cases has it been laid down that the action cannot be maintained.

7. In the case of Seru Mohun Bania v. Bhagoban Din Pandey 9 C. 602 Mcdonel and Tottenham, JJ., decided that such a suit could be maintained. And in a case which has not been reported, but which has been referred to in a subsequent decision by Tottenham and Agnew, JJ.--Iswar Pershad Gurgo v. Jai Narain Giri 12 C. 169--Wllson and Beverley, JJ., who decided that case, distinctly held that the suit was maintainable, and put no limitation to its being maintainable, In the case before Tottenham and Agnew, JJ., they say that they agree with Wilson and Bevrly, JJ., in their judgment in which they unreservedly said that the action is maintainable. They only qualify their opinion by saying that they would have referred the case to the Pull Bench, had they not found that the Chief Justice in a similar judgment, to which he had been a party, did not intend to say that the action was not maintainable on any terms whatever, but that it was necessary that before a suit is brought other remedies should be exhausted--See Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258. Wilson and Beverley, JJ., in their judgment, considered that that case was not in point as the purchaser bad not perfected his title.

8. In this particular case the same remark applies, but, speaking for myself, I should like to say that in any decision which limits the jurisdiction of these Courts, unless the jurisdiction is expressly taken away, I do not agree; and that in my opinion whether the remedy under Section 318 has or has not been put in force, the plaintiff, who has purchased the property and has been refused possession of it, has a right to come to the Civil Court and obtain possession of that property. We have examined the cases bearing on this matter, and we find the balance in favour of that view. Therefore we do not refer this case to the Full Bench.

9. So far, therefore, as the action for the land is concerned, the suit can be maintained and this suit must be decreed, there being no other defence but this technical one.

10. The result is that the appeal will be dismissed as far as regards the house, and it will be decreed as far as the land is concerned.

11. Under the circumstances of this case, and in order to save the trouble of taxation, we think that each party should pay his own costs of this appeal.


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