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Citation Codes
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Case Number
Advocates
  • Allen
  • Stanley Johnson
  • J.M. Parikh
  • L. DeGruyther
Judges
  • Sir Lancelot Sanderson
  • Wright
  • Justice Lords Blenesburgh
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Allen
  • Stanley Johnson
  • J.M. Parikh
  • L. DeGruyther
Judges
  • Sir Lancelot Sanderson
  • Wright
  • Justice Lords Blenesburgh
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

These are two consolidated appeals from decrees dated 19 August 1930 of the High Court of Judicature at Port William in Bengal, which reversed orders dated 28 February 1929 of the Court of the First Subordinate Judge of Tippera at Comila. The central dispute concerned whether the appellants, who purchased mortgaged immovable properties at two auction sales in execution of mortgage decrees (with leave of the Court), were entitled to delivery of possession of the properties.

Key chronological facts stated in the opinion:

  • Mortgages: In 1901 (and another in 1903) respondents (or their predecessors) mortgaged a total of 19 (and then an additional 19) immovable properties to appellant 1 (for himself and cosharers).
  • Decrees: Final mortgage decrees for sale in both suits were passed on 10 July 1919.
  • Execution and auction purchases: Execution was taken out in March 1922. At auction sales on 10 February 1923 the appellants purchased the mortgaged properties (first case for Rs. 18,225; second for Rs. 30,026) with leave of the Court.
  • Applications to set aside sales: Judgment-debtors applied under O.21, R.90, Civil P.C. to set aside the sales; the Subordinate Judge disallowed those applications on 15 April 1924 and confirmed the sales on 22 April 1924 under O.21, R.92.
  • Appeals: Certain judgment-debtors appealed to the High Court on 21 July 1924; the High Court dismissed those appeals on 17 March 1927.
  • Sale certificates: In pursuance of O.21, R.94, sale certificates were granted to the appellants on 19 May 1928 (first case) and 6 June 1928 (second case).
  • Applications for possession: The appellants applied to the Subordinate Judge for possession on 10 September 1928 under O.21, R.95, Sch.1, Civil P.C.
  • Limitation objection and intermediate rulings: Respondents objected that the possession applications were barred by Art. 180 of the Limitation Act, 1908, because the sales had become absolute on 22 April 1924 and the applications on 10 September 1928 were more than three years later. The Subordinate Judge held that time ran from the disposal of the appeals (17 March 1927) and therefore the applications were in time. The High Court reversed, holding the sale became absolute on 22 April 1924 and the possession applications were barred. The appellants then appealed to His Majesty in Council (Privy Council).

Legal Issues Presented

  1. Whether, for the purpose of Art. 180 of the Limitation Act, 1908, the three-year period for an auction-purchaser's application for delivery of possession runs from the date on which the Subordinate Judge confirms the sale (O.21, R.92) or from the date of final disposal of any appeal against the order disallowing an application to set aside the sale.
  2. Whether the appellants' applications for delivery of possession made on 10 September 1928 were barred by Art. 180, Limitation Act, 1908, given that the Subordinate Judge confirmed the sales on 22 April 1924 but the High Court dismissed appeals on 17 March 1927.

Arguments of the Parties

Respondents' Arguments

  • The respondents (1 to 3 specifically) objected that the appellants' applications for delivery of possession were time-barred under Art. 180, Limitation Act, 1908.
  • The respondents said that, because the Subordinate Judge confirmed the sales on 22 April 1924, the sale became absolute on that date; thus any application for possession had to be made within three years of 22 April 1924 and the applications on 10 September 1928 were out of time.

Appellants' Arguments

  • The appellants (as reflected in the Subordinate Judge's reasoning and their submissions on appeal) contended that where judgment-debtors appeal the order disallowing their application to set aside the sale, the running of the three-year period under Art. 180 does not begin until the appeal is disposed of; consequently the applications of 10 September 1928 were within three years of the High Court's dismissal of the appeals on 17 March 1927.
  • On appeal to the Privy Council two additional points were raised on behalf of the appellants (but were not argued in the High Court and were not decided by the Privy Council): (1) that there was no right of appeal from the Subordinate Judge's decision on the question of limitation; and (2) that if the application under O.21, R.95 was out of time a suit to recover possession could have been brought and such a suit would have been in time. The Privy Council expressly did not express any opinion on these two points.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Neckbar Sahai v. Prakash Chandra Nag Chaudhuri, AIR 1930 Cal 86 = 120 IC 107 = 56 Cal 608 Held that the three-year period in Art. 180, Lim. Act, should be reckoned from the date of confirmation of the sale under O.21, R.92 and not from the date of final disposal of the judgment-debtor's application under O.21, R.90 (as cited in the opinion). The decision was identified as supporting the learned Judges in the High Court (and as an authority covering the point); the Privy Council noted it as a decision that supports the view that time runs from confirmation under O.21, R.92.
Anarjan Bibi v. Chandra Mani Saha, AIR 1932 Cal 75 = 134 IC 1188 = 56 CLJ 574 The High Court's decision (19 Aug 1930) in the present matter, which followed the decision in Neckbar Sahai and held that the three-year period is to be reckoned from confirmation under O.21, R.92. This is the decision under appeal to the Privy Council; the Privy Council reviewed and reversed the High Court's decision on the question of when the sale becomes absolute for the purposes of Art. 180.
Chhogan Lal Bagri v. Behari Lal Saha Ray, AIR 1933 Cal 311 = 147 IC 881 Held (as to its facts) that the three years ran from the date of final, conclusive and definite order confirming the sale (25 July 1927 in that case) and not from the earlier confirmation (30 May 1925); the High Court in that case distinguished Neckbar Sahai. The Privy Council observed that the decisions in Neckbar Sahai and Chhogan Lal Bagri appear to be in conflict, but stated that they agree with the decision in Chhogan Lal Bagri "so far as it relates to the matter now under consideration."
Muthu Korakki Chetty v. Md. Madar Ammal, AIR 1920 Mad 1 = 54 IC 66 = 43 Mad 185 (Full Bench) Addressed the question whether the cause of action for an application under Art. 180 is suspended during the pendency of proceedings for setting aside the sale (Full Bench reference). The Privy Council held that, apart from some observations in the judgments, the decision does not assist in the present appeal because there was no question of suspension of any cause of action in the present case.

Court's Reasoning and Analysis

The Privy Council's reasoning proceeded from the text of Art. 180, Limitation Act, 1908, which requires that an auction purchaser's application for delivery of possession must be made within three years from "the time when the sale becomes absolute." To determine that time, the Court turned to the Civil Procedure Code, in particular the rules in Order 21, Rules 82–96 (Sch.1) which govern sales of immovable property in execution of decrees.

The Court placed emphasis on O.21, R.92(1) which provides that "Where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute." The Privy Council accepted that this rule applies to the present case because the judgment-debtors did apply to set aside the sales and the Subordinate Judge disallowed those applications and confirmed the sales on 22 April 1924.

However, the Council then analysed the effect of appeals from the Subordinate Judge's orders. Where judgment-debtors appealed to the High Court under O.43, R.1(j) against the Subordinate Judge's orders disallowing applications to set aside sales, the High Court, by virtue of S.107(2) of the Code, has the same powers as the Subordinate Judge and can either confirm or set aside the sale. The Privy Council reasoned that because the High Court has the power to alter the Subordinate Judge's order, the sale cannot be regarded as finally absolute for the purposes of Art. 180 until the appeal is disposed of by the High Court.

The opinion illustrated the point by considering converse hypothetical scenarios: if the Subordinate Judge had allowed the application to set aside the sale but the High Court on appeal disallowed it, the High Court would then confirm the sale and only upon that confirmation would the sale become absolute; conversely, if the Subordinate Judge disallowed the application and the High Court later set aside the sale, there would be no sale at all.

Applying this construction, the Privy Council concluded that where there is an appeal from the Subordinate Judge's order disallowing the application to set aside the sale, the sale does not become absolute within the meaning of Art. 180 until the disposal of the appeal. On the facts, the High Court dismissed the appeals on 17 March 1927, and therefore the Privy Council held that the sales became absolute on that date for the purpose of Art. 180.

The Court considered prior High Court decisions (including Neckbar Sahai and Chhogan Lal Bagri) and observed that there has been a difference of opinion in the Calcutta High Court. It noted that Neckbar Sahai supported the view that time runs from confirmation under O.21, R.92, and that Chhogan Lal Bagri reached a result (three years running from final disposal of the appeal) which the Privy Council ultimately accepted "so far as it relates to the matter now under consideration." The Privy Council also reviewed the Full Bench Madras decision (Muthu Korakki Chetty) and found it not decisive for the present case because the factual question of suspension of cause of action did not arise.

Two additional points raised by the appellants before the Privy Council (no right of appeal on limitation point; an alternative suit would have been in time) were noted but not decided because they had not been taken in the High Court.

Holding and Implications

APPEALS ALLOWED.

Holding (direct dispositive outcome):

  • The Privy Council held that the sales did not become absolute for the purposes of Art. 180, Limitation Act, 1908, until the disposal of the appeals by the High Court on 17 March 1927.
  • Accordingly, the applications for possession made by the appellants on 10 September 1928 were not barred by the Limitation Act.
  • The decrees of the High Court dated 19 August 1930 (which had set aside the Subordinate Judge's orders and dismissed the possession applications) were set aside, and the orders of the Subordinate Judge of 28 February 1929 restoring possession were reinstated.
  • The respondents were ordered to pay the costs of the appellants in the High Court and in these appeals.

Implications (consequences and scope):

  • Immediate legal consequence: The appellants' applications for delivery of possession were held to be in time; the Subordinate Judge's orders granting delivery of possession were restored.
  • On broader precedent: The opinion discusses and distinguishes earlier decisions, and the Privy Council explained the legal principle that where an appeal lies against a Subordinate Judge's order disallowing an application to set aside a sale, the sale is not finally absolute for the purpose of Art. 180 until the appeal is disposed of. The opinion therefore resolves the question in favour of reckoning the limitation period from the final disposal of such appeals in circumstances like those before the Court. The text does not state that a new broader principle beyond this construction was established beyond the decision's application to the present facts.

Appeals allowed; costs awarded to appellants. This summary is drawn exclusively from the provided opinion and does not add information beyond that text.

Show full summary ...

    Chandra Mani Saha And Others v. Anarjan Bibi And Others

    Sir Lancelot Sanderson:-

    These are two consolidated appeals from two decrees dated 19th August 1930, of the High Court of Judicature at Port William in Bengal, which reversed two orders dated 28th February, 1929, of the Court of the First Subordinate Judge of Tippera at Comila. The question for determination is, whether the appellants, who purchased with the leave of the Court at two auction sales certain mortgaged property in execution of two mortgage decrees in their favour, are entitled to delivery of possession of the said property. It was alleged on behalf of the respondents that the two applications which were made by the appellants for delivery of possession of the said property were out of time and barred by the Limitation Act 1908. The Subordinate Judge held that the applications were not barred and made an order for delivery of possession of the property referred to in each application. Respondents 1 to 3 appealed in each case to the High Court, and on 19th August 1930, the learned Judges of the High Court delivered a judgment which disposed of the two appeals. In pursuance thereof decrees were made setting aside the orders of the Subordinate Judge and dismissing the applications for possession on the ground that they were barred by the Limitation Act. From these decrees the appellants have appealed to His Majesty in Council. The respondents were not represented. The material facts are as follows:-

    In 1901 respondents 1 to 8 or their predecessors executed a mortgage in respect of 19 immovable properties in favour of appellant 1 who took the mortgage for himself and his cosharers the other appellants or their representatives. In 1914 the appellants sued on the mortgage making the mortgagors respondents 1 to 8 or their predecessors principal defendants and the remaining respondents or their predecessors pro forma defendants. On 10th July 1919, the final mortgage decree for sale was passed. The same respondents executed in 1903 in favour of the appellants another mortgage in respect of the same 19 and 19 other immovable properties and in 1914 the appellants sued the respondents in the same manner as mentioned before. On 10th July 1919, the final mortgage decree for sale was passed. In March 1922, the appellants took out execution of both decrees, the first for Rs. 19,315-3-0 and the second for Rs. 32,180-15-9. At auction sales in execution in both cases the appellants purchased with the leave of the Court on 10th February 1923, the mortgaged properties, in the first case for Rupees 18,225 and in the second case for Rs. 30,026. Applications, to the Subordinate Judge were made on behalf of the judgment-debtors under O. 21, R. 90, Civil P. C. 1908, to set aside the sales. On 15th April 1923 the Subordinate Judge made orders disallowing the said applications, and on 22nd April 1924, he confirmed the sales in pursuance of O. 21, R. 92, of the said Code. On 21 July 1924 appeals by certain of the judgment debtors were filed in the High Court against the orders of the Subordinate Judge, dated 15th April 1924.

    On 17th March 1927, the High Court dismissed the said appeals. In pursuance of O. 21,R. 94, the Subordinate Judge granted sale certificates to the appellants in the first case on 19th May 1928, and in the second case on 6th June 1928. On 10th September 1928, the appellants made an application in each case to the Subordinate Judge for possession of the properties purchased by them at the said auction sales. The applications were made under O. 21, R. 95, Sch. 1, Civil P.C. Respondents 1 to 3 objected to the said applications on the ground that they were barred by limitation. They alleged that the sales had become absolute on 22nd April 1924. When the Subordinate Judge confirmed the sales, and that inasmuch as the applications for delivery of possession were not made until 10th September 1928, the said applications were out of time by reason of Art. 180, Lim. Act, which provides that such an application must be made within three years from the time when the sale becomes absolute. As already stated, the Subordinate Judge held that the applications were not out of time; he considered that inasmuch as the judgment-debtors appealed against his orders of 15th April 1924, time did not begin to run until the date of the disposal of the appeals, viz., the 17th March 1927, and therefore, the applications for possession made on 10th September 1928 were made within three years specified by Art. 180, Lim. Act. The learned Judges of the High Court were of opinion that the sale became absolute on 22nd April 1924, when the Subordinate Judge confirmed the sales, and therefore that the applications for possession, which were made on 10th September 1928, were barred by reason of the said article.

    There is no doubt that Art. 180, Lim. Act, 1908, is applicable to the matter now under consideration. It provides that a purchaser of immovable property at a sale in execution of a decree for delivery of possession, must take the application within three years from the time when the sale becomes absolute. In order to ascertain when such a sale as is referred to in the said article becomes absolute, reference must be made to the Civil Procedure Code, and the orders and rules contained in Sch.1 thereto, for that is the Code which contains the provisions relating to the sale of immovable property in execution of decrees. O. 21,Rr. 82 to 96, in the said schedule are applicable to sales of immovable property. Rr. 89, 90 and 91 deal with applications to set aside a sale and R. 92 (1) provides as follows:

    "Where no application is made under R. 89, R. 90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute."

    There is no doubt that the above-mentioned rule is applicable to the present case; for as already stated the judgment-debtors did apply to set aside the sale, and the Subordinate Judge disallowed the applications on 15th April 1924, and on 22nd April 1924, he confirmed the sales. The sales therefore became absolute on 22nd April 1924, at any rate so far as the Court of the Subordinate Judge was concerned. But the judgment-debtors had a right of appeal under O. 43, R. (1) (j) against the orders of the Subordinate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment-debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of S. 107 (2) of the Code had the same powers as the Court of the Subordinate Judge. In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute. In considering the meaning of the words in Art. 180, Lim. Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the sale; in that case, of course, there could be no confirmation of the sale as far as the Subordinate Judge was concerned, as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal, and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and on such an order of confirmation by the High Court the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and, of course, no confirmation and no absolute sale.

    Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Art. 180, Lim. Act, regard must be had not only to the provisions of O. 21, R. 92 (1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under O. 21, R. 92 (1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180, Lim. Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.

    Their Lordships therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of Art. 180, Lim. Act, until 17th March 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limitation Act. Their Lordships' attention was drawn to certain cases decided by the High Court at Calcutta, from which it appears that there has been a difference of opinion on the point now under consideration. The learned Judges in their judgment in this case referred to two unreported cases which in their opinion covered the point. The first of these cases, decided on 27th July 1928, viz: Neckbar Sahai v. Prakash Chandra Nag Chaudhuri, AIR 1930 Cal 86=120 IC 107=56 Cal 608. This is undoubtedly a decision which supports the judgment of the learned Judges now under consideration, for it was held that :

    "The period of three years provided for in Art. 180, Lim. Act 1908, for an auction-purchaser's application for delivery of possession should be reckoned from the date of the confirmation of the sale under O. 21, R. 92 and not from that of the final disposal of the judgment-debtor's application under O. 21, R. 90."

    The decision of the High Court in the present case Anarjan Bibi v. Chandra Mani Saha, AIR 1932 Cal 75=134 IC 1188=56 CLJ 574, was given on 19th August 1930, and followed the decision in the above-mentioned cited case. It may be noted that it is now reported in 56 Cal LJ, at p. 574 (AIR 1932 Cal 75). On an earlier page of the same volume of the Calcutta Law Journal, the case of Chhogan Lal Bagri v. Behari Lal Saha Ray, AIR 1933 Cal 311=147 IC 881, is reported. That case was decided by a Division Bench of the High Court at Calcutta on 15th July 1932, i.e., nearly two years later than the decision in the case now under appeal. In Chhogan Lal Bagri v. Behari Lal Saha Ray, AIR 1933 Cal 311=147 IC 881 the head-note is as follows :

    "the decree-holder (appellant) in execution of his mortgage decree purchased the property on 17th September 1924. An application for setting aside the sale by one of the judgment-debtors was dismissed on 30th May 1925, and the sale was confirmed on that date. An appeal was afterwards filed against the order dismissing the application for setting aside the sale, and the appeal was dismissed on 25th July 1927. The present application for delivery of possession was made on 18th January 1929."

    It was held that the application, being governed by Art. 180, Sch. 1, Lim. Act, was in time; that the three years ran from 25th July 1927, when there was a final, conclusive and definite order confirming the sale, and not from 30th May 1925. The learned Judges were able to distinguish the case of Neckbar Sahai v. Prakash Chandra Nag Chaudhuri (1), from the case which they were considering, and held that it was not an authority against the appellants. Their Lordships find considerable difficulty in appreciating that conclusion, for it seems to them that the decisions in the two above-mentioned cases are directly in point on the matter now under consideration, and that the decisions are in conflict. Reference was also made to the case of Muthu Korakki Chetty v. Md. Madar Ammal, AIR 1920 Mad 1=54 IC 66=43 Mad 185 (FB), which was a decision of a Pull Bench; the question which was referred to the Full Bench was :

    "Whether the existence of the cause of action for an application for delivery of possession to which Art. 180, Sch. 1, Lim. Act, applies, is suspended during the pendency of proceedings for setting aside the sale."

    In their Lordships' opinion, the decision on that question, apart from observations which were made in the judgments, does not assist in the present appeal, for there is here no question of any suspension of any cause of action. For the reasons already given, their Lordships agree with the decision of the High Court in Chhogan Lal Bagri v. Behari Lal Saha Ray (3) so far as it relates to the matter now under consideration. Two further points were raised on behalf of the appellants (1). That there was no right of appeal from the decision of the Subordinate Judge on the question of limitation, and (2) that if the application under O. 21, R. 95 was out of time, a suit might have been brought by the appellants to recover possession and that the suit would have been in time. Neither of these points was taken in the High Court, and in view of their Lordships' above-mentioned conclusion, it is not necessary for them to express, and they do not express, any opinion in respect of either of them. The result is that their Lordships are of opinion that the appeals must be allowed the decrees of the High Court dated 19th August 1930, set aside, and the orders of the Subordinate Judge of 28th February 1929, restored, and they will humbly advise His Majesty accordingly. The respondents must pay the costs of the appellants in the High Court and of these appeals.

    Appeals allowed.

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    Comments

    Chandra Mani Saha And Others v. Anarjan Bibi And Others
    (May 10, 1934)