Order of Reference to the Full-Bench.— Assuming that article 134 of the Limitation Act applies in a case where the defendant has bought at a sale held in execution of a decree, we think that the date of the sale, and not the date of the confirmation of the sale, is the date of the purchase for the purpose of that article. From the date of the sale the person to whom the property has been knocked down is designated in the Code of Civil Procedure by no other name than purchaser. On that date be incurs obligations as purchaser and acquires an interest in the property (see Venkatalingam v. Veerasami(2)). We cannot suppose that the Legislature used the word purchaser in the Limitation Act in a different sense. But on the question whether article 134 applies to the case of involuntary sales made under the provisions of the Code, we are of opinion that the ruling in Muthu v. Kambalinga cannot be supported. We do not think it is possible to say that a man who buys the property of a, judgment-debtor which has been attached in execution of a decree buys that property from the judgment-debtor. With all deference to Mr. Justice Muttusami Ayyar, we think it is misleading to say that a simple mortgagee has a power of sale. The right to sue for sale which the mortgagee possesses is very different from a power of sale as that term is generally understood. But, however that may be, it was not any right of the mortgagee that was enforced. It was the decree-holder who was enforcing his remedy in indium against the judgment-debtor, that judgment-debtor happening to be a mortgagee.
We refer to a Full Bench the question whether a purchaser at a sale in execution of a decree against a mortgagee is a purchaser of the mortgaged property from the mortgagee within the meaning of article 134 of the second schedule to the Limitation Act?
The above reference came on before the Full Bench constituted as above.
J.L Rosario, for appellant, contended that the auction-purchaser (defendant No. 19) was a purchaser from the mortgagee, within the meaning of article 134 of the Limitation Act, and that the suit was barred as against him, as more than twelve, years had elapsed, before the filing of the suit, since the date of the purchase, namely 18th January, 1880. He referred to rule 4 of the High Court Rules of Practice, Appellate Side, under which a judgment-debtor may be examined as to his interest in property; also to Kali Das Mulick v. Kanhya Lal Pundit; Muthu v. Kombalinga; Ambalavana Desigar v. Bappu Rao Jagadap(3); Pandu v. Vithu(4); Chintamoni Mahapatro v. Sarup Se(5).
Sundara Ayyar, for respondent, contended that the suit was one for redemption and that defendant No. 19 had only the rights of the mortgagee from whom be had purchased; and that article 148 was applicable and that in consequence the suit was not barred. He cited Bhagwan Sahai v. Bhagwan Din(6); Pandu v. Vithu; Sundara Gopalan v. Venkatavarada Ayyangar(7); Dorab Ally Khan v. Abdool Azeez(8); Whitworth v. Gaugain(9); Scbhagckand Gulabchand v. Bhaichand; and Radanath Boss v. Gisborne.
The Court recorded the following
Opinion.—We are clearly of opinion that when in execution of a money-decree immovable property of a judgment-debtor, in which his real interest is only that of a mortgagee; is attached and brought to sale, the question-purchaser cannot be regarded as a purchaser from the mortgagee within the meaning of article 134 of the second schedule of the Limitation Act, even though the property was sold as the property of the judgment-debtor without any limitation of his interest therein. Article 134 is, in our opinion, intended solely to apply to cases in which the mortgagee disposes of the property voluntarily. But in the case of an involuntary sale in execution of a decree the purchaser cannot be regarded as a purchaser from the judgment-debtor. The decision in Muthu v. Kambalinga proceeds, we think, on the erroneous assumption that the Court in selling the judgment-debtor's property in which his interest is that of a mortgagee for the discharge of the debt due by him under the decree is exercising the power of sale which the judgment-debtor qua mortgagee possesses. Assuming be has such power of sale, the Court may be regarded as exercising that power in a suit which the mortgagee may bring against the mortgagor for the recovery of the mortgage debt. Such power of sale cannot be exercised for the benefit of the mortgagee to enable him to discharge a debt due by him to a third party.
The case came on for final hearing before “Davies and Bhashyam Ayyangar, JJ., when their Lordships delivered the following
Judgment.—Following the decision of the Full. Bench on the question referred to it, this second appeal is dismissed with costs.