1. In this suit a sale was held by the Registrar on 10th February 1933. On 13th March, the defendant Amritakrishna Datta gave notice that, on Monday 20th March, an application would be made for an order that the sale be set aside. Article 166, Lim. Act, provides that such an application must be made within thirty days of the sale. The thirtieth day fell on 12th March, which was a' Sunday. Therefore the applicant had, until 13th March inclusive, to make his application. The first point taken by the plaintiff is that there were two purchasers at the sale, and that notice was given to one only. I am satisfied from the affidavits that the other purchaser had actual notice of the application, and that absence of formal notice is not a bar. This was decided by Suhrawardy and Duval, JJ., in the case of Charu Chandra Ghosh v. Behari Lal Mitra : AIR1925Cal157 .
2. The next point taken by the plaintiff is more difficult to determine. It is clear that notice of the application was served on 13th March, but it is argued on his behalf that this is not sufficient, and that the serving of the notice is not the 'application' which must be made within the thirty days. In Khetter Mohun Sing v. Kassy Nath Sett (1893) 20 Cal 899, it was held, that the taking out of a summons calling upon another to attend a Judge in chambers on the hearing of an application is the act of the applicant, and not of the Court taking cognizance of the application, and is not sufficient to save the application from being barred, if the hearing of the application comes on after the time allowed by the Limitation Act for the application has expired. That is a decision of the Court sitting in appeal from the original side and is binding upon me. But it appears from the report that none of the English cases were cited to the learned Judges. In my opinion, the point decided requires further consideration by the Court sitting in appeal in the light of the English decisions.
3. In Hinga Bibee v. Munna Bibee (1903) 31 Cal 150' Sale, J., held that the service of a notice that an application would be made to restore a suit does not prevent limitation from running. In that case also the English cases were not brought to the attention of the learned Judge, and he decided that the notice of motion was not sufficient to prevent the law of limitation from applying, 'as was laid down in the case of Khetter Mohun Sing v. Kassy Nath Sett (1893) 20 Cal 899'. In fact, as I have already remarked, the decision in that case turned upon the question whether the issue of a summons prevented time from running, and therefore is distinguishable. In Venkapaiya v. Nazerally Tyabally AIR 1924 Bom 36, which was a decision on appeal, it was held, that, where an application is to be made to the Court within a limit of time, it is deemed to be made for the purposes of limitation when the notice of motion is first filed in the proper office of the Court.
4. The learned Judge relied upon In re Gallop and Central Queensland Meat Export Co. (1890) 25 QBD 230. That was a decision of Denman. J., in which he held that the period of limitation ceased to run from the time when a notice of motion was served upon the other side, applying the ratio decidendi of Smith v. Parkside Mining Co. (1880) 6 QBD 67 and In re Corporation of Huddersfield and Jacomb (1874) 17 Eq 476. In Atarmoni Dasi v. Bepin Behari : AIR1929Cal193 Costello, J., held that the filing of a tabular statement is an application to the Court, and is distinguishable from a notice of motion so far as it affects the question of, limitation. The learned Judge reviewed the cases to which I have referred, and agreed with the Bombay decision, and the English cases upon which that decision was founded, but remarked that if he had been concerned with a notice of motion he would have felt himself bound by the decision in Khetter Mohun Sing v. Kassy Nath Sett (1893) 20 Cal 899 to hold that the mere giving of a notice of motion is not sufficient to prevent the period of limitation from running, but he ventured to express the opinion that the decision did not seem to be in accordance with the English cases. In my opinion, the law is correctly stated by Denman, J., and as the present case turns upon the question whether the service of a notice of motion is sufficient, it is distinguishable from the decision in Khetter Mohun Sing v. Kassy Nath Sett (1893) 20 Cal 899. Consequently I hold that the present application is not barred. Upon the merits, there is no ground for setting aside the sale. Therefore the application is dismissed with costs.