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Purundur Mahto on His Death His Son Hem Lal Mehto Vs. Mahomed Hossein - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal287
AppellantPurundur Mahto on His Death His Son Hem Lal Mehto
RespondentMahomed Hossein
Excerpt:
limitation - suit to set aside sale held in execution of a decree--execution act xv of 1877 (limitation act), sections 4 and 14 and schedule ii, article 12--civil procedure code (act xiv of 1882), sections 311 and 312. - .....by the high court on second appeal on the 13th january 1880. on the 24th march following, the district judge on appeal confirmed the order of the lower court rejecting the plaintiff's petition under section 311 of the civil procedure code.4. on the 2nd april 1880, the plaintiff made an application to the original court to set aside the sale, on the ground that the decree at the time it was held was barred by limitation. the court, apparently acting under section 316 of the civil procedure code, set aside the sale on the 13th september 1880. on the 13th april 1881 this court, on the motion of the defendant, set aside the order of the 13th september 1880 as passed without jurisdiction.5. the present suit was brought on the 4th january 1882 for possession of the property in dispute,.....
Judgment:

Mitter and Pigot, JJ.

1. The facts of this case are briefly as follows:--In 1878, execution of a money decree against the plaintiff was taken out, and the property in dispute was attached. On the 15th June 1878, a petition was filed by the plaintiff, objecting to the proceedings in execution on the ground that the decree was barred by limitation. On the 18th November 1878, the Court executing the decree overruled this objection, and the property in dispute was sold at auction for Rs. 90. Against this order the plaintiff preferred an appeal.

2. On the 17th December 1878, before the appeal was heard, the plaintiff made an application under Section 311 of the Code of Civil Procedure to set aside the sale on the ground of material irregularity in conducting it. This application was rejected on the 17fch May 1879, and the sale was confirmed on the 21st May following.

3. The appeal against the order of the Original Court overruling the plea of limitation was heard on the 5th of July 1879, and the Appellate Court decreed the appeal, holding that the decree was incapable of execution as barred by limitation. This decision was confirmed by the High Court on second appeal on the 13th January 1880. On the 24th March following, the District Judge on appeal confirmed the order of the lower Court rejecting the plaintiff's petition under Section 311 of the Civil Procedure Code.

4. On the 2nd April 1880, the plaintiff made an application to the Original Court to set aside the sale, on the ground that the decree at the time it was held was barred by limitation. The Court, apparently acting under Section 316 of the Civil Procedure Code, set aside the sale on the 13th September 1880. On the 13th April 1881 this Court, on the motion of the defendant, set aside the order of the 13th September 1880 as passed without jurisdiction.

5. The present suit was brought on the 4th January 1882 for possession of the property in dispute, which was sold on the 18th November 1878 by setting aside the said sale.

6. The Court of First Instance dismissed the suit, but the District Judge on appeal has, reversing the decree of the lower Court, awarded a decree in favour of the plaintiff. Against the decision of the District Judge, the present appeal has been preferred by the auction-purchaser.

7. The parties joined issue upon the question whether the defendant auction-purchaser was or was not a mere benamidar for the defendant decree-holder. Both Courts have concurrently found that it had not been established that he was benamidar of the decree-holder. That question being one of fact, is therefore no longer open in this second anneal.

8. One of the grounds upon which the suit was dismissed by the Subordinate Judge was that it was barred by limitation under Clause (a) of Article 12 of the second schedule of the Limitation Act, which says that in a suit to set aside a sale in execution of a decree, the period of limitation is one year from the date when the sale is confirmed.

9. The lower Appellate Court is of opinion that this article is not applicable because the execution sale in this case was a nullity. The District Judge holds that the decree being barred by limitation the Court had no jurisdiction to direct any sale in execution thereof. One of the contentions of the defendant auction-purchaser, before the District Judge, was that the decree was not barred by limitation, and that as he was not a party to the proceeding in which it was held that it was so barred, he was not bound by the decision arrived at in it. But the District Judge overruled this contention on the ground that he purchased the property when that proceeding was pending, and that therefore on the doctrine of lis pendens he was bound by the final decision in that proceeding.

10. The District Judge was further of opinion that, even if the article in question be held to be applicable, the present suit would not be barred by limitation. He arrives at this conclusion in the following way:--In the first place he thinks that the date of the confirmation of the sale is not the 21st of May 1879, when the Court in which the sale was held, held a proceeding confirming the sale. He is of opinion, therefore, that upon the proper construction of Section 312 of the Civil Procedure Code, the Court had no power to confirm the sale then. But the date when the sale should be held to have been confirmed, according to the provisions of the Civil Procedure Code, was the 24th of March 1880, when the District Judge dismissed the appeal in the proceeding under Section 311.

11. In the second place the District Judge holds that the plaintiff is entitled under Section 14 of the Limitation Act to the deduction of the time which elapsed between the 2nd of April 1880, (when the plaintiff applied to the Subordinate Judge to have the sale set aside on the ground that the decree had been declared by the highest Court to be barred), and the 13th of April 1881, when the High Court revsrsed the order made by the lower Court in that proceeding in favour of the plaintiff. There is no doubt that if this period be deducted, and if the correct starting date be the 24th of March 1880, the suit would be within time.

12. It seems to me that the District Judge is in error in holding that this suit is not barred under Clause (a) of Article 12 of the second schedule of the Limitation Act.

13. The District Judge is in error in holding that, inasmuch as the Court had no jurisdiction to entertain the application of the decree-holder for the sale of the disputed property in consequence of the decree being barred by limitation, the sale itself was a nullity. Section 4 of the Limitation Act directs that an application made after the period prescribed in the Act shall be dismissed. This direction in the section in question does not take away the jurisdiction of the Court in respect of the application in any way. If the Court erroneously holds that the application is not barred, the order of the Court, though erroneous and liable to be set aside in the way prescribed in the procedure law, is not a nullity, but remains in full force until set aside. Therefore, the sale held in this case was a valid sale until it was set aside.

14. That being so, Clause (a); Article 12 of the second schedule of the Limitation Act clearly applies to this suit. According to the article in question the period of limitation begins to run from the time when the sale is confirmed. In this case the sale was confirmed on the 21st of May 1879. The District Judge is of opinion that the word 'disallowed' in Section 312 of the Civil Procedure Code means 'disallowed' by the Appellate Court. It seems to me that the section does not admit of this construction. The words of the section leave no discretion to the Court in the matter of the confirmation of the sale after the objection is disallowed. It says that the objection, being disallowed, 'the Court shall pass an order confirming the sale.' The objection to the sale was disallowed on the 17th May 1879, and the sale was confirmed on the 21st May following. The date of the confirmation of the sale was therefore the 21st May 1879, and not the 24th March 1880 as held by the District Judge. Taking the 21st May 1879 as the starting point, the present suit was not brought within one year, even if the time deducted by the District Judge be held to have been rightly deducted. The suit is, therefore, barred by limitation.

15. The decision of the lower Appellate Court will, therefore, be set aside, and the plaintiff's suit dismissed with costs in all the courts.


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