1. This appeal by the plaintiff in a suit for refund of money paid by him for the purchase of property, and which purchase could not be, and was not, completed by the defendant and of which possession could not be delivered, for the reason that the property became non-existent, must be allowed. The defendant was not either under law or equity entitled to retain the money paid by the plaintiff for purchase of property, without taking any step for completing the sale, and for putting the plaintiff in possession of the property sold.
2. There is nothing contained in the Bengal Municipal Act, 1884, which militates against a sale held Under Section 361 of that Act being completed under the law, and the possession of the property being given to the purchaser, from whom purchase money has been received by the Municipality. The sale not having been completed in the case before us, and possession not having been delivered, the plaintiff was entitled to get refund of the purchase money with damages as claimed in the suit. The question of limitation as raised by the defendant in the suit must be, on the facts of the case, decided against the defendant. The purchase money was paid on 16th June 1925 ; the defendant asked the plaintiff to send necessary stamped papers for a conveyance, and the plaintiff sent the stamped papers on 5th January 1926; subsequently on 16th March 1929 the defendant informed the plaintiff that the conveyance could not be executed. The defendant failed to deliver possession of the property on repeated demands made by the plaintiff ; and the plaintiff failed to obtain delivery of possession when he attempted to do so on 29th March 1929. The suit for refund of purchase money, out of which this appeal has arisen, was instituted on 17th May 1929. The suit was not therefore barred by limitation. The case is one to which Art. 97, Schedule 1, Limitation Act, is clearly applicable. It has been held by the Courts below that no notice Under Section 363, Bengal Municipal Act, 1884, was necessary in the case of the present nature.
3. According to the trend of authorities bearing upon the subject, the section is applicable only in those cases where the plaintiff claims damages or compensation for some act done in the exercise of, or honestly supposed exercise of, statutory powers; and not in a case where there was no statutory power to refuse to complete a sale held Under Section 361 of the Act, and put the purchaser in possession, or to refuse the refund of the purchase money on non-completion of the sale. In the above view of the case before us, the appeal is allowed, the decision of the Court of appeal below is set aside, and the decision and decree of the trial Court passed in favour of the plaintiff-appellant are restored. The appellant is entitled to get his costs in the litigation, including the costs in this appeal from the respondent.