The Judgment of the Court was as follows:—

Roxburgh, J.:— This appeal arises out of a suit by the Plaintiffs for declaration of their raiyati right in one-third share of the suit land and for recovery of possession. The suit land formerly belonged to one Hakimuddin Patwari who died in Pous, 1331 B.S, leaving six daughters, one son and a widow. Three of the daughters are Plaintiffs and the other three daughters and the son and the widow are pro forma Defendants Nos. 5 to 9.

The suit was contested by the Secretary of State, Defendant No. 1, who had purchased the holding of Hakimuddin Patwari in a certificate sale in respect of arrears of rent for 1937-1938 B.S The Plaintiffs claim that as they were not certificate-debtors in those proceedings, their interests were not affected by the certificate sale and they also claim to have been dispossessed of the holding in the latter part of 1340 B.S by the Secretary of State. The Secretary of State's case is that the three Plaintiffs were represented by pro forma Defendant No. 6, Selim Mia, son of Hakimuddin Patwari and that their interest passed in the sale.

In the trial Court the Plaintiffs claimed that they had separate possession of the suit land and had themselves paid rent. The trial Court found that in fact they had no separate possession and that the rent had been paid by the son, Selim Mia. The trial Court, therefore, found that the Plaintiffs had been represented by Selim Mia and dismissed their suit. In the lower Appellate Court the question of representation appears to have been argued on the basis of sec. 146(A) of the Bengal Tenancy Act and that Court also found that the Plaintiffs had been represented by Selim Mia within the terms of sub-cl. (ii) of sub-sec. (3) of sec. 146A. The lower Appellate Court also held that the Plaintiffs' claim was barred under a special law of limitation. In this Court two points are urged, first that the lower Appellate Court should not have allowed the question of limitation to be canvassed before it and secondly that sec. 146A of the Bengal Tenancy Act does not apply to certificate proceedings.

As regards the question of limitation, we think the lower Appellate Court was in error. The learned Judge discussed sec. 3 and sec. 29 of the Limitation Act and Or. 8, r. 2 of the Code of Civil Procedure. It is to be noted, however, that the case is really governed by sec. 184 of the Bengal Tenancy Act, although this fact in itself appears to make no difference to the decision.

Sec. 184, sub-sec. (1), provides that every suit instituted after the period of limitation provided in Schedule 3 shall be dismissed although limitation has not been pleaded. We are of opinion that this does not overrule the provisions of Or. 8, r. 2 which require that the Defendant must raise by his pleading all matters which raise issues of fact not arising out of the plaint, as for instance limitation.

Sec. 184 would require a suit to be dismissed if in fact it has been filed after the period of limitation and would apply even in an ex parte case if the facts appeared, but it is clearly evident from the judgment of the lower Appellate Court itself that in this case the facts were not clear and undisputed and indeed he discussed the evidence at some length in order to arrive at a conclusion that the suit must necessarily have been filed, at any rate, a few days after the period of limitation had expired and he uses for the purpose some of the evidence that appeared in the case. We do not think this was the proper way of treating the matter and we consider this was clearly a case in which the question of Imitation should not have been allowed to be raised as the necessary facts had not been pleaded and so attention had not been drawn to them at the time of the trial.

Coming next to the question of representation, it is to be noted that the trial Court did not rely on the specific terms of sec. 146A of the Bengal Tenancy Act. This section was enacted in the Amendment Act of 1928 and in fact substantially codified the previous law on the subject, at any rate as regards decrees. We think, however, for reasons which will appear hereafter that it must be conceded that it cannot be held to apply in terms to certificate proceeding and that if it is desired by the legislature that it should be so, some specific reference to the Bengal Public Demands Recovery Act, 1913, is necessary in that section.

The decision on the question turns on the interpretation of sec. 20 of the Bengal Public Demands Recovery Act, 1913. Sub-sec. (1) of that section provides that

“Where property in sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale even though the property itself be specified.”

We have then the terms of sub-sec. (3) which runs as follows:—

“Notwithstanding anything contained in Bub-sec, (1) in areas in which Chapter XIV of the Bengal Tenancy Act, 1885, is in force, where a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof, the tenure or holding shall, subject to the provisions of sec. 22 of that Act, pass to the purchaser, subject to the interests defined in that Chapter as ‘protected in terests’ but with power to annul the interests de fined in that chapter as ‘incumbrances’.”

Mr. Sen Gupta who argued the case for the Appellants appeared to urge that the meaning of the words “where the holding is sold in execution of a certificate” must be taken to be equivalent to “where all the tenants of a holding are certificate-debtors and hence all of their interests are sold,” but we think it must be taken as meaning “where the interests of all the tenants of a holding are bound by the sale and sold in execution of a certificate.” The real intention of sub-cl. (3) is evidently to make clear that, just as in a sale in execution of a rent decree more than the interests of the tenants themselves shall pass, namely, the right to annul incumbrances under Chapter XIV of the Bengal Tenancy Act, so also in the case of a certificate sale a similar right shall pass. In support of his contention Mr. Sen Gupta referred to the case of Musst. Raja Koer v. Ganga Singh (1) which has been relied on in Ghanshyam Das v. Ragho Singh* (2), but the former case was decided before the Act of 1913 and on the ground that a certificate sale did not contemplate enforcement of a security. The provisions of sec. 20(3) now clearly provide for such enforcement and it is in cases of such a kind that the question of representation becomes of importance, for the interests of third parties are vitally affected and the decision as to this interest may turn on a question whether some obscure heir or co-sharer tenant who had taken no interest in his share has been named as a certificate-debtor in a certificate or was a party to the decree for arrears of rent. We must suppose that when the legislature gave this extended effect to sales in execution of certain certificates for rent, it intended to make it as effective as in the case of a sale in execution of a decree for rent and legislated on the assumption that the principle of representation then recognised in respect of rent decrees without statutory provision would also apply in the case of sales in execution of certificates.

Mr. Rama Prasad Mukherji, appearing for the Secretary of State, pointed out that the phrase “where a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof,” which appears in sec. 20(3) of the Public Demands Recovery Act, occurs also in sec. 158 of the Bengal Tenancy Act (with the substitution of “decree” for “certificate”) and that it was inserted in other sections of Chapter XIV of that Act, for example in secs. 166, 171, 172, by sec. 62 of the Public Demands Recovery Act itself. He urges that the phrase should be given the same interpretation throughout. Sec. 61 of that Act inserted sec. 58(B) into the Bengal Tenancy Act in order to make it clear in what circumstances, so far as affected the landlords, the holding should pass or not and a distinction was made in that the holding passed in the case of a decree if it was obtained either by a sole landlord or by the entire body of landlords or by one or more co-sharer landlords who had made all remaining co-sharers party Defendants to the suit, whereas in the case of a certificate the holding would only pass if the certificate was signed on the requisition of, or in favour of, a sole landlord or of the entire body of landlords. Thus in the case of certificate procedure there was no provision for bringing in co-sharer landlords who were not themselves applying for a certificate and sec. 20(4) of the Public Demands Recovery Act itself points this out. These provisions were amended in 1928, but the same distinction between decree and a certificate was maintained and so far as a certificate was concerned, the terms of sec. 158AAA were to the came effect as those of sect 158B which was repealed. So far as a decree was concerned, some special provision was made so that a co-sharer landlord in certain circumstances might have the advantage of a rent sale in respect of his separate share of the rent. (Chapter XIIIA including sec. 158AAA has since been repealed by the amendment of 1938).

It will be seen then that the formula “where a tenure or holding is sold in execution of a decree for arrears due in respect thereof” in sec. 159 and other sections in Chapter XIV of the Bengal Tenancy Act has a different meaning according as whether a decree or a certificate is referred to, in the sense that the tenure or holding is “gold” within the meaning of those sections only according as whether the procedure of sec. 148A or the terms of sec. 158AAA respectively are complied with. Similarly then it appears that the formula may have a different meaning according as a decree or certificate is referred to in so far as the interests of the tenants are affected. In other words, when the amendment to Bengal Tenancy Act was made by the insertion of sec. 146A, by which in the case of sales by execution of decrees it was provided that in certain circumstances the interests of certain persons not actually parties to the suit might be affected, it does not follow that this applied also to certificate sales in so for as any change was made from the law as stood at the time when the Bengal Public Demands Recovery Act itself was passed in 1913.

To this extent, therefore, the contention of Mr. Sen Gupta must prevail and we hold that sec. 146A does not apply in terms to certificate sales, but on the other hand both Courts have found as a fact that the heirs of Hakimuddin Patwari possess this holding jointly and that the rent was paid by the son. It would seem that, as was indeed found by the trial Court, apart from the explicit terms of sec. 146A, the Plaintiffs daughters were represented and therefore their interests were bound by the sale.

The result is that although the Appellants' contention on the point of limitation succeeds, they fail on the question of representation and this appeal must be dismissed. There will be no order as to costs.

Mukherjea, J.:— I agree.

P.C