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Sri Madan Mohon Jew Vs. Sm. Bejoyabati Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberOriginal Suit No. 80 of 1953
Judge
Reported inAIR1954Cal202
ActsLimitation Act, 1908 - Section 14(2); ;Code of Civil Procedure (CPC) , 1908 - Section 11 - Order 21, Rules 89 and 90
AppellantSri Madan Mohon Jew
RespondentSm. Bejoyabati Dassi and ors.
DispositionApplication dismissed
Cases ReferredGour Chandra v. Pradyumna Kumar
Excerpt:
- .....is said:'nor do we think that the mere fact of the commissioner having rejected the appeal on the ground of limitation is sufficient to disentitle the piaintiff to the deduction of the time during which that appeal was pending, if, in the opinion of the court which has to determine the question whether this suit is barred by limitation, that appeal was not really put of time, but failed 'from defect of jurisdiction or other cause of a like nature' within the meaning of section 14 of the limitation act. but in this case the appeal to the commissioner was clearly out of time as well under section 2 of bengal act vii of 1868 as under section 16 of the bengal act vii of 1880, the only provisions of the law under which such an appeal could lie; and though under section 5 of the limitation.....
Judgment:

P.B. Mukharji, J.

1. This is an application to set aside a sale in execution. The application is made by the 5th defendant Mono Durlav Das who describes himself as the Managing Shebait of the Estate of Sri Sri Madan Mohan Jew under a Will dated 1st August, 1914 executed by his father Menick Lal Das deceased. It relates to the sale of property No. 29, Blackburn Lane, Calcutta. The sale was held on the 11th March, 1953. Although the Municipal valuation of the property was Rs. 7,760/- as shown in the Exchange Gazette, it was sold for the sum of Rs. 225/- only. My sympathies, therefore, are naturally with the applicant.

2. The main difficulty, however, on his way is the bar of limitation. I have already said that the sale was held on the llth March, 1953. This application was made on the 15th May, 1953. The limitation for an application to set aside a sale in execution under the Civil Procedure Code is 30 days from the date of sale under Article 166 of the Limitation Act. This application, therefore, is obviously time-barred.

3. Learned Counsel for the applicant, however, argues that the applicant should receive the benefit of Section 14(2) of the Limitation Act. The section begins with a marginal note 'Exclusion of time of proceeding 'bona fide' in Court without jurisdiction.' In Sub-section (2) of Section 14 it is provided:

'In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of Appeal, against the defendant, snail be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.'

Counsel for the applicant proposes to take advantage of this section on the basis of the following facts which must here be recounted at this stage.

4. There was a previous application to set aside this sale on the 2nd of April, 1953. That application was under Order 21, Rule 89 of the Civil Procedure Code. The frame of that previous petition did not suggest any irregularity or fraud although some such case was intended to be made in the affidavit-in-reply in those proceedings. In substance that petition itself was an application under Order 21, Rule 89. In fact, in that application of the 2nd April, 1953, the same petitioner asked for extension of time to deposit the money required under Rule 89.

He obtained my leave on the 16th April, 1953 to deposit the amount of claim and costs of the decree-holder Ganga Prosad Gupta at whose instance the property had been sold; but such leave was expressly granted 'without prejudice to the rights and contentions of the parties.' The actual deposit was not made until the 21st April, 1953. That application for setting aside the sale under Order 21, Rule 89 was dismissed by me on the 14th May, 1953. That order was without prejudice to other rights and contentions of the parties. The present application was made the following day, that is, the 15th May 1953.

5. Now this present application is one under Order 21, Rule 90 of the Civil Procedure Code, and made by the same petitioner.

6. What is, therefore, said by the learned Counsel for the applicant is that the whole period from the 2nd of April 1953 till the 14th May 1953 during which the application under Order 21, Rule 89 to set aside the sale was pending, should be excluded, in determining the limitation for this present application. If that is done, then it is claimed that he is within time. I am not disposed to accept that argument that even then he is within time because between the 16th and 21st April there are five or six days in which he could have made this application but did not do so, and nothing is shown before me why that delay was made. This application should therefore fail on that ground alone.

7. But I will assume for the purposes of argument everything in favour of the applicant and disregard the interim break between the 16th April and the 21st April 1953 and now deal with the argument if the whole period from 2nd April 1953 to 14th May 1953 can be excluded under section 14(2) of the Limitation Act in the facts and circumstances of this case.

8. Now I am not satisfied that this period from the 2nd April 1953 till the 14th May 1953 can be excluded under section 14(2) of the Limitation Act. In order to exclude that time this Court has to be satisfied that the former application under Order 21, Rule 89 was prosecuted 'with due diligence' in a Court which, from defect of jurisdiction, or other cause of a like nature' was unable to entertain it. Now the application under Order 21, Rule 89 was a proper application and was made to the proper Court. There was no 'defect of jurisdiction' or 'other cause of a like nature' within the meaning of Section 14(2) of the Limitation Act.

It was argued before me by the learned Counsel for the applicant that because the deposit was not put in as required by Order 21, Rule 89, therefore the Court could not entertain the application and had to dismiss it. Failure to deposit as required by Order 21, Rule 89 is the fault of the applicant and the dismissal of the application on that ground is not in my view due to any defect of this Court's jurisdiction or 'other cause of like nature'. It is not a point of 'defect' of jurisdiction' or 'other cause of a like nature'.

In contending otherwise, the learned Counsel for the applicant has drawn my attention to the case of -- Manki Prasad v. Ram Kripal', reported in : AIR1951Pat486 (A). B. P. Sinha, J. delivering judgment in that case observes at p. 487 of that report:

'The broad principle underlying the provisions of section 14 of the Act (Limitation Act) is, naturally, the protection against the bar of limitation of a litigant honestly pursuing his remedies, or supposed remedies, to get his case tried on merits, and failing to get his relief on account of the inability of the Court to give him a hearing on merits -- see in this connection the observations of their Lordships of the .Full Bench of the Allahabad High Court in the case of --'Mathura Singh v. Bhawani Singh', 22 All 248at p. 253 (B). * * * These words (''or other cause of a like nature'), of course, have got to be construed 'ejusdem generis' with defect of jurisdiction, that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application, and to decide it on its merits -- see in this connection the observations of their Lordships of the Full Bench of the Lahore High Court in the case of -- 'Jai Kishen v. Peoples Bank of Northern India', AIR 1944 Lah 136 (C). It has also been repeatedly held that the words of this section, and particularly the words 'or other cause of a like nature', should be liberally construed: vide --'22 All 248 (B)', and the Full Bench decision of this Court in the case of -- 'Lal Bihari Lall v. Bani Madhav AIR 1949 Pat 293 (FB) (D) where the decisions of their Lordships of the Judicial Committee in the cases of -- 'Ramdutt Ram-kissendas v. E. D. Sassoon & Co AIR 1929 PC 103 (E) and -- 'Brij Indar Singh v. Kanshi Ram AIR 1917 PC 156 (F), have been referred. In my opinion, these words are wide enough to cover a case like the present.'

Now that decision relates to an application under section 5 of the Limitation Act for condoning the delay in making an application for review of a judgment of that Court. No question of condoning delay arises here. Here is a case of non-compliance and disregard of Order 21, Rule 89 leading to the dismissal of the application.

9. As against these decisions, Mr. Lahiri appearing for the respondent draws my attention to the Full Bench decision of this Court in --'Bishambhur Haldar v. Bonomali Haldar', reported in 26 Cal 414 (G). That was a Reference to the Full Bench by Sir Guru Das Banerjee, J. and Pratt, J. in the letter of Reference set out at p. 417 it is said:

'Nor do we think that the mere fact of the Commissioner having rejected the appeal on the ground of limitation is sufficient to disentitle the piaintiff to the deduction of the time during which that appeal was pending, if, in the opinion of the Court which has to determine the question whether this suit is barred by limitation, that appeal was not really put of time, but failed 'from defect of jurisdiction or other cause of a like nature' within the meaning of section 14 of the Limitation Act. But in this case the appeal to the Commissioner was clearly out of time as well under section 2 of Bengal Act VII of 1868 as under section 16 of the Bengal Act VII of 1880, the only provisions of the law under which such an appeal could lie; and though under section 5 of the Limitation Act, the appeal could be admitted for sufficient cause though out of time, it was for the Court to which the appeal was made to say whether there was any sufficient cause for admitting it. As no such sufficient cause was shown before the Commissioner, the appeal to him must be taken to have been barred by limitation, and it, therefore, failed for a reason other than 'defect of jurisdiction or other cause of a like nature' within the meaning of section 14 of the Limitation Act.'

These observations found favour in the judgment of the Full Bench delivered by Maclean, C. J. on the Reference. The other case relied on by Mr. Lahiri is also on this point. He refers me to the case of -- 'Shanti Lal v. Daulat Ram', reported in AIR 1948 EP 68 (H).

In that case it was distinctly held that when a Court dismissed a suit or an application on the ground that it was barred by limitation, it decided it on merits. In any case, it could not be said that it was unable to entertain it 'either from defect of jurisdiction or other cause of a like nature'.

''Where, therefore, the previous proceedings, the time spent during which the plaintiff wishes to be excluded, were started on an application for execution and it was held that the execution application was barred by time, the case does not fall under the purview of Section 14, Limitation Act, and the time spent therein cannot be excluded.'

Reliance in that case was placed on the Full Bench decision of the Calcutta High Court to which I have drawn attention already.

10. The net result seems to me that if an application is dismissed on the ground of limitation, it cannot be said to come under the words 'defect of jurisdiction or other cause of a like nature' within the meaning of section 14(2) of the Limitation Act. On a parity of reasoning I am satisfied that when an application under Order 21, Rule 89 is dismissed on the ground that the required deposits have not been made in time, such dismissal is on merits of the provisions of Order 21, Rule 89 and not due to 'defect of jurisdiction' in the Court or 'other cause of a like nature' within the meaning of Section 14(2) of the Limitation Act. Therefore, I cannot accede to the applicant's contention that his previous application under Order 21, Rule 89 being dismissed because of the applicant's failure to deposit the required money within time, the period taken in prosecuting that application should be excluded under section 14(2) of the Limitation Act.

11. There is another point for consideration in this application (V) is concerned. Under Order 21, Rule 89 of the Civil Procedure Code a sale is set aside on deposit. The deposit has to be a sum equal to five per cent. of the purchase money for payment to the purchaser and a deposit for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Now by making these two deposits, a person either owning (such property or holding an interest therein by virtue of any title acquired before such sale, is given the right to have the sale set aside. This has nothing to do with the sale being impeached on the ground of fraud or material irregularity. It may have been a perfectly valid sale, even then the law allows it to be set aside under Order 21, B. 89 on making those deposits.

12. In Rule 90 the application to set aside the sale is made on very different grounds. Those grounds are of material irregularity or of fraud. Rule 90 permits an application to be made to set aside a sale on the ground of material irregularity or fraud in publishing or conducting the sale provided of course that no sale is set aside on the ground of irregularity or fraud unless the Court is satisfied that the applicant had sustained substantial injury by reason thereof.

13. This leads to a consideration of the question, how far these two different applications under B. 89 and B. 90 are complementary or exclusive, Sub-rule (2) of Order 21, Rule 89 provides:

'Where a person applies under rule 90 to set aside the sale of his immoveable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.'

So far, therefore, as can be obtained from these provisions it is the clear intention of the Code that when there are two applications -- one under Rule 89 and the other under R. 90 -- pending in the Court, the applicant is not allowed to move or prosecute and application under Rule 89 unless he withdraws his application under B. 90. The reason behind such a provision is not far to seek. If the sale is set aside on the ground of material irregularity or fraud in publishing or conducting the sale, then it will not be proper to pay the purchaser a solatium and the decree-holder the amount stated in the proclamation of sale vitiated by such material irregularity or fraud. The principle is that if the sale is bad and set aside for fraud or material irregularity no money should be payable under such sale. Hence before a sale is set aside by calling for deposits under Order 21, Rule 89 the application to set aside the sale for material irregularity or fraud under Order 21, Rule 90 is required to be withdrawn. At the same time the very fact that a provision is made in Order 21, R. 89 Sub-rule 2 appears to indicate a possible legal situation when two applications one under B. 89 and another under Rule 90 are pending concurrently.

14. Two decisions on this branch of the case have been shown to me. On behalf of the applicant the well-known decision of -- 'Sarvi Begam v. Ram Chunder Sarup : AIR1925All778 , has been relied upon. There the judgment-debtor made two applications to set aside a sale, one under Rule 89 and the other under Rule 90. The former was dismissed on the merits after hearing. The latter was dismissed on the ground that the Judgment-debtor by pressing her application under Rule 89 must be presumed to have withdrawn her application under Rule 90.

The learned Judges delivering judgment in that case held that the Court ought to have put the judgment-debtor to her election as to whether she would withdraw the application under Rule 90, and if she had refused to do so, it should have dismissed the application under Rule 89. But the dismissal of the application under Rule 89 without putting her on election was no bar to the hearing of the application under Rule 90. In fact, at 'page 779' of the report the following observation is made:

'In our opinion the converse proposition that an application under Order XXI, Rule 89, having been heard and disposed of, an application under order XXI, rule 90, is not maintainable, does not necessarily follow from sub-clause (2) of rule 89.'

Although it was an 'obiter dictum' coming as it does from Sulaiman, J., I have the highest respect for that observation. In this Court there is a decision of S. B. Das, J. in -- 'Gour Chandra v. Pradyumna Kumar', AIB 1945 Cal 6 (J).

The learned Judge there comes to the conclusion that an application under Order XXI, Rule 89 need not be dismissed 'in limine' if the applicant does not withdraw his application under Rule 90, and held that the requirements of Sub-section (2) of Rule 89 were sufficiently complied with if the application under Rule 89 was not allowed to be actually made or prosecuted, i.e., actually moved or proceeded with and was stayed till the disposal of the application under Rule 90. In that application the grounds of both Rule 89 and Rule 90 were combined.

15. It does not appear to me that any one of these cases dealt with the point as to why an applicant should bear the penalty of paying a solatium to the purchaser whose sale has been set aside and pay fully the claim of the decree-holder while having the other remedy of being able to set aside the sale in case of material irregularity and fraud. The point is that it is difficult to see why where there has been a case of fraud or material irregularity the applicant should rather deposit moneys under Rule 89 than apply to set aside under Rule 90 without paying the moneys.

One can certainly understand such a situation in a case where at the time of making an application under Rule 89, the fraud or material irregularity was not known to the applicant. But where both the grounds under Rules 89 and 90 are known and available, and the applicant choses the ground under Rule 89 and elects to put in the deposits required under that Rule, then his failure to take the ground of attack of the sale under Rule 90 might be argued to bar its subsequent revival because of the doctrine of 'res judicata' and principles analogous thereto. The judgments referred to above do not deal with these considerations. It is unnecessary, however, for me to decide this particular point of competition between Rule 89 and Rule 90 of Order 21 of the Code, and how far they are independent or exclusive and if so in what circumstances. I therefore do not decide it.

16. I am satisfied in this case that the application is barred by limitation and the provisions of Article 14(2) of the Limitation Act cannot be attracted. Inspite of my natural sympathies with the applicant because of the price at which the property was sold in this case I think that the point of limitation is clear.

17. The application, therefore, must be dismissed. Having regard to what I have observed before, I think it will be proper not to make any order as to costs.


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