Mookerjee, J.:— The subject-matter of the litigation, which has given rise to this appeal, is a parcel of land which admittedly belonged originally to one Biku Dhobi as his occupancy holding. On the 4th March, 1889, Biku borrowed money from Government for agricultural purposes, and executed a mortgage of his holding to the Secretary of State for India in Council. He was unable to re-pay the loan on the day fixed and the result was that, in execution of a certificate made under the Public Demands Recovery Act, 1895, the holding was brought to sale, and was purchased on the 6th August, 1902 by the Plaintiff, now Respondent before us. On the nth November 1907, the Plaintiff commenced this suit for declaration of his title and for recovery of possession against two sets of Defendants; the second set of Defendants comprised the landlords of the holding, and the first set was composed of mortgagees from them, who, in execution of a mortgage decree, were about to sell the estate within which the disputed bolding is situated. The Plaintiff sought for a declaration that the land was the occupancy holding of Biku, and not the proprietor's private land as falsely alleged by the second set of Defendants; and that, consequently, it was not liable to be sold in execution of the mortgage decree held by the first set of Defendants. The Defendants denied that the disputed land was the holding of Biku, and asserted that it was the private land of the proprietor who had been in direct possession since at least 1892. The Defendants further contended that, if Biku had at any time a tenancy-interest in the land, it had been extinguished by adverse possession on the part of the landlords; and that, in any event, the Plaintiff had not, by his purchase at the sale under the Public Demands Recovery Act, acquired a title capable of enforcement against the landlords or their representatives in interest. The Courts below have concurrently overruled these contentions and, in the view that the claim is not barred by limitation, have made a decree in favour of the Plaintiff. The Defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed on the ground that, in the events which have happened, Biku Dhobi had no subsisting interest in the disputed land at the time of the sale under the Public Demands Recovery Act, and that, consequently, it was not competent to the Secretary of State for India in Council to confer on the auction-purchaser any title which may be deemed valid against the landlords. This contention has been sought to be supported from two distinct points of view, namely, first, that the effect of the sale, under the Public Demands Recovery Act, was to transfer to the purchaser the right, title and interest of the judgment-debtor, and that, before that date, such right, title and interest had been extinguished by adverse possession of the landlords for the statutory period of 2 years; and, secondly, that, even if the certificate-sale be deemed to be a sale held for the enforcement of the security in favour of the Secretary of State for India in Council, the auction-purchaser could not acquire any title, because by reason of the adverse possession of the landlords, the equity of redemption of the mortgagor as also the interest of the mortgagee had been extinguished.

In so far as the first of these contentions is concerned, it is well-settled by a series of decisions of this Court, beginning with the case of Shekaat Hussain v. Sashi Kar(1), and ending with the case of Raja Koer v. Ganga Singh(2), that the effect of a sale under the Public Demands Recovery Act is to pass to the purchaser merely the right, title and interest of the persons named as the judgment-debtor in the certificate. See also Rupram v. Iswar(3), Ashanulla v. Manjura Banu(4), Raja Baikuntha Nath v. Udoy Chand(5), Abdul Hai v. Gujraj(6), Baij Nath v. Ramgut(7). Sec. 10 of Public Demands Recovery Act, 1895, further provides that the certificate, after it has been filed and duly notified, binds all immoveable property of the judgment-debtor situated within the jurisdiction of the District Collector, in the same manner and with like effect as if such immoveable property had been attached under the provisions of the Code of Civil Procedure. Consequently, if on the date of the service of notice, the judgment-debtor has no subsisting interest in a particular parcel of land, the purchaser at the certificate sale which follows can acquire no valid interest therein. Now, in the case before us, it is reasonably plain, upon the proceedings of the Collector, that the certificate was made for recovery of the debt and not for the enforcement of the security held by the Secretary of State for India in Council. In fact, the Public Demands Recovery Act does not contemplate the realisation of a security. The steps taken are analogous to those provided by the Civil Procedure Code for the enforcement of a money-claim. This is clear from sec. 19, sub-sec. (2) of the Public Demands Recovery Act, 1895, which lays down that the certificate may be enforced and executed, in the manner provided by Chap. XIX of the Civil Procedure Code of 1882, for the enforcement of decrees for money. The substance of the matter is that if the Secretary of State for India in Council intends to enforce the security, he must proceed by way of a regular suit; but he may practically abandon the security and realise the loan as money claimed, by the summary procedure of a certificate under the Public Demands Recovery Act. This view is in accord with that taken in the case of Luchmi Narain Singh v. Raghu Nandan Sahi(8). Upon the first branch of the contention of the Appellants, therefore, the question arises, whether the judgment-debtor Biku had any subsisting interest in the disputed land when the notice of the certificate under the Public Demands Recovery Act was served upon him. Now it has been found that, in 1892, that is, 10 years before the date of such notice, Biku had been dispossessed by his landlords, who have continued in possession up to the present time. Under Article 3 of Sch. III of the Bengal Tenancy Act, Biku, as an occupancy raiyat, dispossessed from his holding by his landlords, was bound to sue for recovery of possession within two years from the date of dispossession. He failed to do so. What, then, was the effect of this dispossession upon the title of Biku? It has been argued, on behalf of the Defendants-Appellants, that his title was extinguished at the end of the period prescribed for the institution of a suit by him. In answer to this contention, it has been argued by the Plaintiff that secs. 184 and 185 of the Bengal Tenancy Act, read together, do not make sec. 28 of the Limitation Act applicable to cases of this description. It has been suggested, in fact, that the terms of sub-sec. (2) of sec. 185—which lays down that subject to the provisions of Chap. XVI of the Bengal Tenancy Act, the provisions of the Indian Limitation Act shall apply to all suits, mentioned in sec. 184, that is, suits governed by Sch. III annexed to the Act—are not wide enough to attract the operation of sec. 28 of the Limitation Act to such suits; that section lays down that, at the determination of the period limited by the Indian Limitation Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. We are not impressed by the soundness of this contention of the Plaintiff-Respondent; but even if it be held that sec. 28 of the Limitation Act has not been made specifically applicable to suits of this description by sub-sec. (2) of sec. 185 of the Bengal Tenancy Act, it is clear that the same doctrine must be held applicable on first principles. It was ruled by the Judicial Committee in the case of Gunga Govinda Mandal v. Collector of 24-Pergunnahs(9), that if a person suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession. [See also Luchmee v. Ranjeet(10), Fatimaatulnissa v. Sundar(11), Jagamba v. Ram Chandra(12)]. The tendency of modern decisions is undoubtedly in favour of this view, even in the absence of a statutory provision (for the extinguishment of the right to property) of the type we find embodied in sec. 28 of the Limitation Act: [Dalip v. Deoki(13) and Sarafuddin v. Chandra Mani(14)]; the contrary view, sometimes maintained, [Doe v. Kuppu(15), Secretary of State v. Vira(16)] is opposed to the decisions of their Lordships of the Judicial Committee just mentioned, and cannot be supported. We are of opinion, therefore, that, even if it be held that sec. 28 of the Limitation Act does not directly apply to cases governed by Article 3, of Sch. III of the Bengal Tenancy Act, the principle is applicable; and that, consequently, the title of Biku in the case before us was extinguished in 1894. In 1902, when proceedings were taken under the Public Demands Recovery Act, he had consequently no subsisting interest which could be attached and sold. In this view, the Plaintiff, as purchaser at the certificate sale, has not acquired any interest which he can enforce against the landlords, who by adverse possession have acquired an indefeasible title to the property. The first branch of the contention of the Appellants must, therefore, prevail.

In so far as the second contention of the Appellants is concerned, it has been argued that, if the certificate proceedings be assumed to have been appropriately taken for the enforcement of the security held by the Secretary of State for India in Council, the Plaintiff-Respondent has not acquired any title to the disputed property, because before the security was sought to be enforced, the interest of the mortgagor as also of the mortgagee had been extinguished by adverse possession for the statutory period by the landlords. In support of this proposition, reliance has been placed upon the cases of Ramkumar Sen v. Prasanna Kumar Sen(17) and Karan Singh v. Bakarali Khan(18). The question raised is of considerable nicety and by no means free from difficulty, and we may observe that there has been some divergence of judicial opinion upon it. The contention of the Appellants in substance is that the adverse possession on the part of the landlords operated to extinguish not merely the equity of redemption but also the interest of the mortgagee. There can be no room for controversy that if such adverse possession had commenced before the execution of the mortgage, its operation would not have been arrested by the grant of the mortgage security, on the elementary principle that the effect of a statute of limitation, in the absence of legislative provision to the contrary, must be determined with reference to the actual state of the title when time begins to run, and that, when the time has once commenced to run against the absolute owner, no subsequent alteration in the title will postpone the bar. Where, however, as here, the mortgagor has been dispossessed after the grant of the mortgage, the view has sometimes been maintained that the adverse possession does not operate against the mortgagee, see Aimadar Mandal v. Makhan Lal Dey(19), which was accepted as good law in Vencatachala v. Subramania(20). There is, however, considerable force in the contention of the Appellants that the contrary view ought to be maintained on principle. The learned Vakil for the Appellants has argued, that the right of the mortgagee to the security subsists only so long as the mortgagor's right to the property subsists, and both are in the same position if the interests of the mortgagor and mortgagee are equally invaded by the trespasser. This view is supported not only by the case of Ramkumar v. Prasanna Kumar, but also by the observations in Sheoumber v. Bhowanee(21), Ram Lal v. Masum Ali(22), Ammu v. Ramakrisna(23), Karan Singh v. Bakarali Khan, Anando Moyee v. Dhonendra Chandra(24), and Prannath v. Rookea Begum(25); see also, Chinto v. Janki(26) and Kanhu Lal v. Manki(27). We are not unmindful that in England it has been ruled that, where land is subject to a mortgage, the statute does not rim against the mortgagee in favour of a stranger in possession of the land so long as the mortgagor pays interest to the mortgagee, or more strictly, such payment of interest continually checks the operation of the statute, Doe v. Eyre(28), Doe v. Massey(29) and Ford v. Ager(30), provided the adverse possession began after the creation of the mortgage: Thornton v. France(31). See also Eyre v. Walsh(32). It is worthy of note, however, that the decision of the House of Lords in Heath v. Pugh(33), upon which reliance is placed in Aimadar Mandal v. Makhan Lal Dey, is clearly distinguishable, because there the mortgagee had commenced his action to foreclose the mortgagor before the adverse possessor had been able to extinguish the equity of redemption; under these circumstances, it was ruled that for the purposes of an action in ejectment by the mortgagee, who had become full owner, time must be taken to run against him from the date when his title was perfected. In the case before us, the certificate proceedings, even if they be assumed to be proceedings for enforcement of the security, were not taken till the equity of redemption at least had been extinguished by adverse possession on the part of the landlords. The view may, therefore, well be maintained that the certificate-sale passed no title to the purchaser. That the question, however, is not free from difficulty, is obvious from the divergence of judicial opinion which has prevailed upon it, and in American Courts, where the question has been much debated, contrary views have been maintained. For instance, in Dadmun v. Lamson(34), Menair v. Lot(35) and Glasen v. Haskins(36), the view appears to have been taken that, as regards a third person not in privity with the mortgagor or mortgagee, the existence of the mortgage does not affect the character or effect of the adverse possession by him as against the mortgagee. On the other hand, in Martin v. Jackson(37), it was held that no adverse possession by the consent or connivance of a mortgagor can affect the mortgagee, unless it be so open as to give the latter notice that his rights are invaded. In so far as the Courts in this country are concerned, as we have already explained, there is a conflict of authorities, and if it were necessary for us to rest our decision on this point, we should have to consider whether the matter ought not to be referred to a Full Bench. In the view, however, we take of the first contention of the Appellants, it is clear that their appeal must succeed.

The result, therefore, is that this appeal is allowed, the decrees of the Courts below set aside, and the suit dismissed with costs in all the Courts.

Carnduff, J.:— I agree.

Appeal allowed.