ORDER OF REFERENCE TO A FULL BENCH.

Oldfield, J. — Petitioner, whose legal representatives are the Respondents, bought properties at Court auction in execution of his own decree on 25th March 1913 and the sale was confirmed on 26th April 1913. On 3rd January 1914, before the three years, within which he could apply for possession under Art. 180 Schedule 1, Limitation Act, had elapsed, an application for the setting aside of the sale was presented and was admitted out of due time on the ground of fraud. On it the sale was set aside as regards some items and sustained as regards others, the order to this effect being passed in the Court of First instance on 25th June 1915 and in the Appellate Court on 13th May 1916. The present petition for delivery was presented on 19th February 1917. On these facts the questions raised are whether that petition is in time and incidentally whether such a petition is sustainable in the circumstances with reference to the earlier or later order of confirmation.

The latter question arises on the argument accepted by the Lower Appellate Court, that the delivery asked for is to be based on the second order of confirmation and could not have been asked for until it had been passed and a fresh sale certificate had been drawn up. For the suggestion in the judgment under appeal that such a fresh certificate is necessary we have been shown no warrant. There is no reason for holding that delivery can be asked for or should be granted only of the whole property sold and not of particular item included in it. Whether or no the Court's last order included any explicit cancellation of the certificate as regards the items affected by it, this argument cannot be regarded as substantial, there being no reason why the original certificate should be treated as superseded so far as the items, of which the sale was sustained, were concerned and not as amended in conformity with the order in respect of the others. It is urged however more generally either that the admission of the application for cancellation of the sale deprived the previous confirmation of the finality, which enabled petitioner to ask for delivery in accordance with it or that in any case time did not run and petitioner was under no obligation to apply so long as the confirmation, which would be the basis of his petition might possibly or probably be set aside.

In dealing with the first of these contentions it is to be observed that there is no question of suspension of petitioners' right to apply during any part of the period in question pending an appeal. For the application for cancellation of the sale was not an appeal, being made under O. 21, R. 90 to a Court of First Instance; and it is not suggested that the subsequent appeal related to the items, of which delivery is now claimed. There is no question of an explicit injuction or other direct obstacle to petitioners' obtaining relief. Reference has not been made to any provision of law as authorizing the view that a mere attack on an order can render it ineffective or suspend its efficacy or stop the running of time, which has once begun to run against the person who obtained it.

This is material as entailing the failure of the first of the two contentions above referred. With reference to the second, although the conclusion proposed is the same, the principle relied on differs slightly. That principle is not that the validity of the order of confirmation is affected by the filing of the petition for its cancellation, but that the running of time for action on it is suspended directly. It is, to adopt the language used by my learned brother in Doraisami Padayachi v. Vaidyalinga Padayachi the suspension, not of the existence of the cause of action, but of the running of time. For this contention also no statutory basis has been alleged. The question is only of the effect of the authorities to be referred to.

In Somasundaram Pillay v. Vannilinga Pillay Ayling, J. and my learned brother endorsed the principle that, “if circumstances exist which would render a suit or application infructuous, a party should not be compelled to institute it, until the impediment which stands in the way is removed “and in Secretary of State v. Raja Vadrevu Ranganayakama the decision of Abdur Rahim, J. which prevailed, seems to me to entail that, as I put the point in dispute, the running of time is suspended so long as any pending proceeding in which any matter essential to the determination of the claim is in issue remains undecided. The authorities now relied on are with one exception Baijnath Sahai v. Ramgut Singh referred to in my judgment in that case and on one ground or another rejected as inapplicable to the facts then before us and as insufficient to support the general proposition then necessary for the appellant plaintiff's success. They in fact, as I understand the points actually decided in them, fall into three classes: those firstly in which the plaintiff was allowed the time occupied in seeking one remedy usually specific performance of an agreement, before he sought another, for instances damages to which he ultimately discovered his right; those next (and Baijnath Sahai v. Ramgut Singh is one of them) in which his right tosue was suspended whilst he had or in good faith believed that he had secured what he claimed; and lastly those, if the decision in Jogesh Chunder Dutt v. Kali Churn Dutt is correct, in which an outstanding adjudication could have been pleaded against his claim. None of these classes accordingly, if the actual result of the cases comprised in them is regarded, covers the case before us. For here throughout the right of the petitioner to apply for delivery of the items, in respect of which he is applying was known to be enforceable and to require enforcing; and there was no obstacle in the way of its being enforced in the shape of any actual collateral adjudication. There was in fact merely the possibility of one; and I do not think that the principle relied on covers or should be extended to cover such a case.

The difficulty however arises, not from the actual conclusions in these cases, but from the way, in which the reasons for those conclusions are stated. For, especially in Baijnath Sahai v. Ramgut Sinh there is much to suggest that a general rule was being enunciated and that the intention was to hold generally in favour of the right of a plaintiff or applicant to defer institution of his proceedings, so long as any reasonable doubt existed regarding his position and the necessity for or possibility of proceedings being taken. It is not clear how that language or the principle underlying the judgments, in which it occurs, can be reconciled with the other interpretations of the Limitation Act, to which my learned brother has referred in the judgment, which I have had the advantage of reading; and I therefore agree to the reference proposed by him.

The question referred is:—

Whether the existence of the cause of action for an application for delivery, to which Art. 180, Sch. I Limitation Act applies, is suspended during the pendency of proceedings for the setting aside of the sale?

Seshagiri Aiyar, J.—I agree that the question raised by my learned brother should be referred to the Full Bench. The sale in question was made in Court auction on the 25th March 1913. It was confirmed on the 26th April in the same year. An application to set aside the sale followed. The final order was on the 25th June 1915. It is in these terms: “In the result I set aside the sale so far as the interest of petitioners 1 to 3 in the properties sold is concerned and dismiss the petition so far as petitioners 4 and 5 are concerned.” The present application is for delivery of the right, title and interest of the defendants against whom the application to set aside the sale, was dismissed. The District Judge held that time began to run only from the 25th June 1915. The question for consideration is whether he is right. The article applicable is 180, and under it the starting point is the date on which the sale becomes absolute. There can be no doubt that this language in Col. 3 of the third schedule has been taken from O. 21, R. 92 of the Code of Civil Procedure. The article is a new one. Under the old Code there were differences of opinion as to whether an application for delivery must be made only in execution or whether a suit can be instituted even though more than three years had elapsed from the date of the confirmation of the sale. The new article has been introduced with a view to remove these doubts. The suggestion made by the learned vakil for the respondent that the application may be brought under Art. 181 should be rejected. His contention that as in 1915 the sale was partly confirmed and partly set aside, Art. 180 is not in terms applicable, is not well-founded. It is true there are no provisions in the Code of Civil Procedure for a second confirmation either partially or wholly when the application to set aside a sale succeeds or fails. I do not think that is a good reason for applying the residuary article, where there is one which in terms applies to the applications made.

Mr. Sitarama Rao then argued that although in terms the sale was confirmed and made absolute on the 26th April 1913, the confirmation must be deemed to have been suspended until the 25th June 1915 when the final order on the application to set aside the sale was made. The strongest case that was quoted by him is Baijnath Sahai v. Ramgut Singh That decision was given with reference to Art. 12 of the Limitation Act. The short facts were that a sale was confirmed by the Collector in 1882 and was upheld in appeal, by the Commissioner. In 1884, the Revenue Board set aside both these orders. On an application for review the Board discharged its own order in 1886. The suit was brought in 1887, within a year of the last order of the Board of Revenue but more than a year after the order confirming the sale. The Judicial Committee held that the suit was in time. By the language of Art. 12 time begins to run from the date when the sale is confirmed. The Judicial Committee at p. 785 say: “Their Lordships are of opinion that there was no final conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of the 25th January 1884 became definitive and operative by the final judgment of the Board of Revenue on the 21st August 1886. or (in other words) that for the purpose of the law of Limitation there was no final or definitive confirmation of the sale until that date.” They further on say: “It cannot be said in the opinion of their Lordships when the parties were litigating before the Revenue Courts as to whether the sale should be confirmed or not because that was the object of the litigation before the Revenue Courts, that the sale had either become final or conclusive.” The same language might not be inaptly employed in the present case. So long as the judgment-debtors or any of them disputed the finality of the sale by seeking to set it aside it may be said that there was no final or conclusive sale or to use the language of Lord Davey “that for the purpose of the law of Limitation the sale had not become absolute” until the 25th June 1915. In Baijnath Sahai v. Ramgut Singh it was pointed out that the Board of Revenue acted without jurisdiction in interfering with the order of the Commissioner Still the Judicial Committee held that these infructuous proceedings before the Board had the effect of suspending the operation of the confirmation of the sale. The view taken by the Calcutta High Court in Janak Prosad v. Net Ram also supports the respondent. Sabapathy Chetty v. Rangappa Naicken is also in his favour.

As against these decisions it must be said that the language of the Limitation Act is so explicit that it is not open to us to import considerations like those which influenced the Judicial Committee into the present case. Other decisions of the Privy Council containing similar observations were quoted before us and I snail now refer to them. In Mussumat Ranee Sumo Moyee v. Shooshee Mokhee Burmonia which was a case in which a revenue sale was set aside by the Collector the land-lord sued to recover arrears of revenue within three years of the setting aside of the sale. It was contended that the claim for arrears was barred by limitation as the suit was brought more than three years after the rent became due. Their Lordships say: “It seems to their Lordships to be perfectly clear, that the cause of action accrued at the time at which, the sale having been set aside, the obligation to pay this sum of money revived.” They further on say: “that upon the setting aside of this sale, and the restoration of the parties to possession, they took back the estate, subject to the obligation to pay the rent; and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place.” This decision does not by itself lend support to the contention of the respondent. But this has been relied on in very many subsequent cases as indicating the view of the Judicial Committee that there can be a suspension of a cause of action during the period when it would be infructuous to sue on the original cause of action. The next Privy Council case relied on was Basu Kuar v. Dhum Singh Some general observations in that judgment are often quoted at the bar. Their Lordships said: “It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor who for years has been insisting that his creditor shall take payment in any particular mode can, when it is decided that he cannot enforce that mode, turn found and say that the lapse of time has relieved him from paving at all.” In a later case, Nrityamoni Dassi v. Lakhan Chundra Sen their Lordships expressed their concurrence with the view taken in Lakhan Chunder Sen v. Madhusudan Sen When the Calcutta decision is examined it will be found that the learned Judges introduced a theory of suspension of limitation which is not warranted either by Sects. 14 or 15 of the Limitation Act. Sitting with Ayling, J. I had to consider the applicability of these cases in C.M.A No. 855 of 1915. Sitting with the learned Chief Justice a similar question was considered in Doraisamy Padayachi v. Vaidyalinga Padayachi Speaking for myself I must say that I always felt with reference to these Privy Council decisions there is as much to be said against my view as in favour of it. The dicta of the Judicial Committee in the above cases may be said to conflict to some extent with the view of the Board in Soni Ram v. Kunhaiya Lal, and in Rani Kuar Mani Singh Mandhata v. Nawab of Murshidabad In the latter case their Lordships suggest that no suspension or extension of limitation is allowable unless the same is speciffcally provided in the Limitation Act. In Soni Ram v. Kunhaiya Lal the right of a mortgagor to redeem became inoperative for a time owing to the fusion of rights as mortgagor and as purchaser. After the dissolution of this dual capacity, he applied to redeem the property and claimed to deduct the time during which the fusion subsisted. Sir John Edge, in delivering the judgment of the Board stated: “There is nothing in Act XV of 1877 which would justify this Board in holding that, once that period of limitation had begun to run in this case, it could be suspended. Their Lordships consider that if they were to hold that, by reason of the fusion of interests between 1883 and 1898, the period of limitation was suspended, they would be deciding contrary to the express enactment of that section that “when once time has begun to run no subsequent disability or inability to sue stops it.” This language can equally be well applied to the present case. Once time began to run under Art. 180 on the sale becoming absolute, the subsequent inability consequent on the application to set aside the sale cannot stop the limitation which had already begun to run. Apart from other cases I think there is a conflict between Baijinath Sahai v. Ramgut Singh and Soni Ram v. Kunhaiya Lal both of which are decisions of the Judicial Committee. I therefore agree that the question should be referred for the decision to the Full Bench.

[The case was then heard by the Full Bench constituted as above.]

Mr. K. Bashyam Iyengar for the Appellants.

Mr. B. Sitarama Rao for the Respondents.

OPINION

The Officiating Chief Justice. — The question referred to the Full Bench arises under Art. 180 of the Limitation Act.

A person, who purchased certain properties at a Court auction in execution of his own decree on the 25th March 1913, applied for delivery of possession on the 19th February 1917. An order confirming the sale was made on the 26th April 1913, but on the 3rd January 1914, that is more than 30 days afterwards, an application was made on behalf of the judgment-debtor for the setting aside of the sale. That application was disposed of by the Court of First Instance on the 25th June 1915, the Court setting aside the sale in respect of some of the items and upholding it as regards the other items. That order was appealed from and the Appellate Court dismissed the appeal on the 13th May 1916.

It will thus be seen that the application for delivery of possession of the property would be barred under Art. 180 if the time of 3 years allowed by the second column be reckoned from the 26th April 1913 when the sale was confirmed under R. 92, O. 21, of the Civil Procedure Code no application for setting aside the sale having been made by that time; but it would be within time if the period of limitation commenced on the 25th June 1915, the date of the order adjudicating upon the application made under R. 90 to set aside the sale on the ground of irregularity or fraud by which the sale as regards some of the items was set aside and the sale as regards the other items was upheld.

There can be no doubt that Art. 180 applies to cases where the sale is confirmed and thereupon becomes absolute under the provisions of R. 92. That rule contemplates that such an order is not to be made until the application is set aside the sale under R. 89 or 90 or 91 if any, has been disposed of and disallowed. The question under reference would hardly arise in cases where the application to set aside the sale is made in the ordinary way within the period of 30 days under Art. 166. The difficulty has evidently arisen because, no application to set aside the sale having been made within 30 days, the Court had in the usual course made the order confirming the sale.

The question then is, when the Court entertains an application to set aside the sale after the order confirming the sale had been made but before the period of 3 years allowed to the purchaser for applying for delivery of possession has expired, whether time must be reckoned against the applicant from the date of the order of confirmation of sale, or whether that order should be treated as not having the effect of making the sale absolute within the meaning of Art. 180 but that the sale should be deemed to have so become absolute from the date when the application for setting it aside was disposed of. I do not think the fact that the sale was set aside in respect of some of the items included therein and upheld as regards the other items should make any difference as to the application of Art. 180 for we are not concerned with the properties the sale of which has been set aside and as regards the rest possession of which alone is sought, the point for decision is whether the entertainment of the application to set aside the sale had or had not the effect of preventing the sale becoming absolute within the intendment of Art. 180. Even without the help of the Privy Council rulings which I shall presently notice, I should answer that in the given circumstances, the sale did not become absolute until the petition made to set it aside had been disallowed. R. 92 has primarily in contemplation cases where the application to set aside the sale is made within the limit of 30 days allowed by the law so that any order confirming the sale would be ordinarily made after the disposal of such applications. But if the Court in this case was justified——and I take it that it was——in entertaing the application to set aside the sale after it had made the order confirming the same, can it be said that, whatever be the result of the application, the order confirming the sale remained effective so as to make the sale absolute from the date on which it was drawn up? To my mind, obviously not.

The effect of entertainment of the application to set aside the sale after the order of confirmation must, having regard to the intention of the legislature as disclosed in this rule and quite apart from any general theory in such connections, be to render the order ineffective so as to make the sale absolute. If we were to proceed upon an absolutely literal interpretation of the language of R. 92 without paying due regard to the intention of the legislature, this case would have to be treated as lying outside that rule, for it requires that the order of confirmation should be made after the disposal of any application to set aside the sale. If so treated there would be no difficulty in the application of Art. 180. Whether it is the practice to issue a second certificate on the disposal of such an application or not cannot, to my mind, affect the application of Art. 180; but I should suggest that a fresh certificate ought to be issued, if not in all cases, at least in those cases where the sale is only partly upheld as the result of an application made to set it aside after the passing of the order confirming the sale. Upon a proper interpretation, therefore, of Art. 180 read with R. 92 of O. 21, Civil Procedure Code, I should hold that, where an application is made for delivery of possession of property sold in execution of a decree, the sale does not become absolute within the meaning of the third column of Art. 180 until the application made to set aside the sale under R. 89 or 90 or 91 has been disallowed and the sale upheld, although an order confirming the sale had been passed before the application to set aside the sale was made. The question referred to the Full Bench, I may mention, is framed in the form as it is, apparently with a view to ascertain the scope and effect of certain rulings of the Judicial Committee which have latterly been the subject of much discussion in this court. But I do not feel myself bound by the frame of the question to state my conclusion as to the application of the Art. 180 to circumstances such as arose in this case with reference only to the mode of computation mentioned in the question.

Of the Privy Council rulings, the one that has the closest application to the facts of this case is that of Baijnath Sahai v. Ramgut Singh There, stating shortly the effect of the judgment of the Judicial Committee as given in the head note, the Board of Revenue of Bengal, discharged an order of the Commissioner, dated 25th January 1884, which had confirmed a sale by the Collector in 1882, but afterwards on 21st August 1886, discharged its own order and revived that of the Commissioner. It was held that the confirmation of the sale dated only from the last order of 21st August 1886, within the meaning of Art 12 of Act XV of 1877, which provides one year, for a suit set aside a sale for arrears of Government Revenue, or for any demand recoverable as such arrears, from the date on which the sale is confirmed, or would otherwise have become final and conclusive had no such suit been brought. At p. 785 their Lordships say that they did not base their decision on the provision of Sect. 14 of the Limitation Act which provides for the exclusion of the time of proceeding bona fide in Court without Jurisdiction, but because they were of opinion “that there was no final, conclusive and definite order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the Order of the Commissioner of the 25th January 1884 became definitive and operative by the final judgment of the Board of Revenue on the 21st August 1886, or (in other words) that for the purpose of the law of limitation there was no final or definitive confirmation of the sale until that date.”

I do not think that much light would be obtained over the present question by discussing in detail the other rulings of the Privy Council cited before us a summary of which is set out in the Order of Reference and which I also had the occasion to discuss previously in Appeals Nos. 113 and 402 of 1917. No doubt there are general observations in some of the cases such as Bassu Kuar v. Dhum Singh at p. 56 where it is stated, “It would be an inconvenient state of the law if it were found necessary for a man to institute a prefectly vain litigation under peril of losing his property if he does not”, or that the right of plaintiffs to bring an action to recover certain property would be suspended because of certain intermediate litigation. (See Lakhan Chunder Sen v. Madhusudan Sen, Nrityamoni Dassi v. Lakhan Chandra Sen in which his title to the property happened to be under investigation. But it is hardly to be inferred from such observations that the Privy Council intended to lay down any rule or rules for exclusion of time other than those mentioned in various sections of the Limitation Act, such as, 12, 14, etc. Or that when time has once begun to run, it will be suspended otherwise than according to the provisions of Sect. 9 or any other similar provision of the Limitation Act itself. In Mussumat Ranee Surno Moyee v. Shooshee Mokhee Burmonia their Lordships had to determine when the cause of action accrued with reference to Sect. 32 of Act X of 1859 whether at the end of each fasli year when the rent became due or on the date of the decree reversing the auction sale of the Putnee Talook belonging to the plaintiff Zamindar, and they decided in favour of the date of the decree reversing the auction sale. I do not see that any general principle of interpetation or application of the Limitation Act can be deduced from this decision which would be of any guidance in the present case In Bassn Kuar v. Dhum Singh in a suit for specific performance for sale of land, it was ruled that the plaintiff's cause of action for recovering the debt which was the consideration for the agreement for sale which failed, arose on the date the decree refusing specific performance was passed, because a new obligation was imposed on the defendant by that decree. The cases in Udit Narain Misr v. Muhammad Minnattulla and Jamma Das v. Najm-un-nissa Bibi were also of a similar nature. And in all these cases the article under consideration was No. 97 of Act of 1877 which was applicable to suits for money paid upon an existing consideration which afterwards failed. In Rangayya Appa Rao v. Bobba Sriramulu the Judicial Committee held that until the puttah was settled under the special provision of the Local Act VIII of 1865, time did not run, but that limitation was to be computed only from the date of the final decree determining the rent. I must however observe that it would almost look that in my judgment in Appeals Nos. 113 and 402 of 1917 I tried to deduce from these cases a principle of general and unlimited application to the effect that where the rights of the parties have been subjected to determination by the Court, it is from the date of the determination of such rights that limitation should be computed. But on further consideration I am persuaded that any such deduction would be unjustified, if it be meant thereby to introduce a rule of exclusion or suspension of time covering a larger ground than that traversed by Sects. 12, 14, 15, 16 and 9 and other similar provisions of the Limitation Act. I need hardly say that I do not desire to express any opinion on the question of limitation involve4 in the Appeals Nos. 113 and 402 of 1917 as a Letters Patent Appeal is now pending from my judgment. But as [have already suggested it is not necessary to attempt to deduce any rule of general application in order to answer the question which arises in this case and that the answer, as I have stated, should be that time should be computed from the date of the order disallowing the petition to set aside the sale and not from the date of confirmation passed before the application to set aside the sale was made.

Oldfield, J.—The question I propose to answer is that which has been referred and not any other, which may appear to afford a ground of disposal in the appeal, in which the reference has been made.

That question is whether the existence of the cause of action for an application for delivery is suspended during the pendency of proceedings for the setting aside of the sale and I do not understand it as raising the distinct question whether the order of confirmation, which had been passed in the case before the referring Judges, had been deprived of the finality which it originally possessed. The distinction is clearly marked in my referring order by the reference to the judgment of Seshagiri Aiyar, J., in Doraisami Padayachi v. Vaidyalinga Padayachi and I propose to adhere to it.

The conflict we have to resolve is between, on the one hand the unrestricted language of Sects. 3 and 9, Limitation Act, which has more than once, as the referring order of Seshagiri Ayyar, J shows been regarded as subject only to the exceptions allowed by some specific provision of law, and on the other certain decisions of the Judicial Committee and the language used in them, which are relied on as involving the existence of an equitable power to relax the provisions of the Act in such cases as the one before us

It is unnecessary to extract the sections of the Act or to insist on their unrestricted character except by pointing out, what will be material in the sequel, that Sect. 3 is affected by Sect. 14 in the case of an application, only when the applicant has been prosecuting, not when, as in the case under reference, he has been on his defence, in another proceeding. That is involved by the reference in Sect. 14 for prosecution in good faith, by the terms of explanation II and by the absence of any reason for supposing that a change in the law was intended when the clear language in the corresponding section of the former Act XV of 1877 was abandoned. Subject however to this, Sects. 3 and 9 are comprehensive. In order to evade them, reliance has been placed on decisions of the Judicial Committee, the effect of which was stated in the recent judgment in C.M.A No. 355 of 1915, to which Seshagiri Aiyar, J. was a party, as being that “if circumstances exist, which would render a suit or application infructuous, a party should not be compelled to institute it, until the impediment in the way is removed.” It is for us to decide whether this general principle can be deduced from the cases relied on

Those cases have been referred to in my order of reference as falling into three classes; and I adhere to that classification in supporting the conclusion, which the fuller argument we have now heard in my opinion entails, that the proceedings in each case were really regarded as in time with reference, not to any extension of the period available for taking them, but to the adoption of a starting point for limitation, which was discovered, either where none had been available before or in supersession of one already in existence. This is, if I understand the opinion to be given by Seshagiri Aiyar, J, correctly, in accordance with the view which he would take although I should respectfully describe it as putting a more accurate, not a more liberal, construction on column 3 of the schedule.

Thus in the first class of cases referred to, those in which the plaintiff, after claiming one remedy in good faith, but unsuccessfully, sought another to which his right was ascertained in his previous proceedings, the decision in Bassu Kuar v. Dhum Sing was based statedly on the fact that from the date, on which an agreement to convey property in satisfaction of a debt was held unenforceable, a new liability for money paid on a consideration which failed was imposed on the debtor in supersessi on of his liability under the agreement or for the debt; and the dictum relied on here, “It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation on pain of losing his property” can be fairly applied, as stating not any general princip'e, but merely an argumentum ab inconvenienti in connection with the reference immediately preceding it to the period during which the decree of the Court of First Instance upholding the agreement was in force. This is in fact the explanation of the decision, which was given in Jamna Das v. Najm Unnissa Bibi and approved by the Judicial Committee in Udit Narain Misr v. Muhammad Minnatulla and Amma Bibi v. Udit Narain Misra

The next class of cases comprised those in which the plaintiff, having obtained all he wanted in previous proceedings, had, when those proceedings were set aside, to take fresh ones in connection with which limitation was pleaded; and the decisions in his favour are easily intelligible with reference to the date of his deprivation of the relief he had secured. Thus in Mussumat Ranee Surno Moyee v. Shooshee Mokhee Burmonia the plaintiff's claim having, as the committee pointed out, once been satisfied by the sale, which was afterwards set aside, it was only when it ceased to be satisfied that the cause of action afterwards sued on became available; and, although Sir R. Collier in Huro Per shad Roy v. Gopal Das Dutt referred to this case, as establishing an exception to the operation of the statute, and in explaining it spoke of the “period of time in which the statute might not run” he described the exception as “rather apparent than real” and the whole tenor of his judgment was consistent with the view I am taking. Another case in this class Lakhan Chunder Sen v. Madhusudan Sen calls for notice because there is no doubt that the judgments in it contain language, in which a suspension of the running of time is referred to. The facts however need cause no difficulty. For they were that certain defendants in a suit for possession and account in respect of a share, from which the plaintiffs alleged dispossession, succeeded in obtaining a decree for ascertainment; of their own share; and the suit for such ascertainment; which they had to bring when the decree in their favour was set aside, was held to be in time, as it might be consistently with the principle under discussion, on the ground that their cause of action arose, only when they were deprived of the relief they had once obtained. In the High Court however, although the judgment mentions the inability of these parties, so long as the decree in their favour subsisted, “to institute a fresh suit for the object, which had been successfully attained,” their case is described as having been that their rights were suspended, and Parannath Roy Choudry v. Rookea Begum and the observations of Lord Eldon in Pulteney v. Warren are referred to, the former dealing with the existence of sufficient cause within the meaning of Bengal Reg. III of 1873, Sect. 14 and the latter with the English principle reproduced in our Sect. 15(1). The Judicial Committee also, in shortly approving the High Court's decision, referred to the suspension of limitation and the deduction of the period spent in the previous litigation. The High Court however had relied on Mussamat Ranee Snrnomoyee's case and the Judicial Committee had also referred to the existence of an effective decree, which was capable of being enforced until set aside; and in these circumstances these Judgments indicate only that, although the existence of alternative grounds for their conclusions was present to the minds of the Courts concerned, it was not thought worth while to maintain the distinction between them for the purpose in hand. In the last case of this kind to which I need refer Baijnath Sahai v. Ramgut Singh the ground of decision is clearly not any suspension of the right to sue. For the judgment statedly expresses no opinion on the applicability of Sect. 14 of the Act and is based on the absence of any sale, which the plaintiff could have sued to have set aside, until the cancellation order obtained by him in good faith had been displaced.

In the remaining classes of cases the plaintiff's claim depended on the principle stated in the judgment of Macpherson, J. in Jogesh Chunder Dutt v. Kalichurn Dutt as deducible from Shama Purshad Roy's case that on the reversal of the main decree, which was the basis of subsequent decrees, the latter are superseded and a suit lies to recover what has been wrongfully paid under them. This principle is of course not one of limitation and its exact scope may come under discussion in another case now pending, to which reference is made in the judgment of the learned Chief Justice. But Jogesh Chunder Dutt v. Kalichurn Dutt is material at present, because consistently with it when the limitation applicable to the suit it authorises was considered in Kalichurn v. Jogesh Chunder Dutt (it was held that time ran from the date of the superseding Judgment under Art. 120, not frond the erroneous receipt of the payment under Art. 62) and no provision relating to suspension was relied on. The dedsion in Narayana v. Narayana, proceeded on similar grounds; and both authorities exemplified the conclusion reached in connection with the first class of cases already dealt with, that an accurate application of the third column of schedule 1, rather than reliance on suspension of the running of time, is the means by which apparent hardship to plaintiffs should be avoided.

In the foregoing representative instances from each of the classes of cases referred to in argument have been dealt with: and the result is that none supports the general equitable principle, for which the respondents before us contend. It has been pointed out that Sect. 14 of the Limitation Act is inapplicable to the case submitted to us and no other positive provision has been relied on. I would therefore answer the question referred in the negative, that in the circumstances stated, if time has begun to run, its running is not suspended.

Sadasiva Aiyar J.—The question referred to the Full Bench is whether the existence of the cause of action for an application for delivery to which Art. ISO of Sch. 1 of the Limitation Act applies, is suspended during the pendency of the proceeding's for the setting aside of the sale.

The relevant dates are as follows:—

(a) the court auction sale took place in March 1913;

(b) the sale was confirmed on the 26th April 1913;

(c) application to set aside the sale was made on the 3rd January 1914;

(d) the sale was set aside as regards the interet of some of the judgment debtors, and it was upheld as regards the others on 25th June 1915;

(e) the application for possession of the interest of the judgment-debtors, the sale of whose interest was finally confirmed on 25th June 1915 was made on 19th February 1917.

If the time between 3rd January 1914 (when the application to set aside the whole sale was made) and 25th June 1915 (when the final order confirming part of the sale was made) is deducted, then the application of 19th February 1917 is within the period of three years from the date when the sale became absolute, which is, the date mentioned in column 8 of Art. 180.

The matter in controversy was argued in two aspects on behalf of the decree-holder-purchsser (1) that even if the cause of action for the application for possession as made arose when the sale of the interests of all the judgment-debtors was confirmed on 26th April 1913; in other words, that even if the application for possession dated 19th February 1917 is based on the cause of action for possession of the entire interests which arose on 26th April 191b, (the date when the first order of confirmation was made) to put it again differently, even if the time of three years, began to run from 26th April 1913 itself notwithstanding that the application was for possession of a fraction of the interests sold on that date, the running of time, was suspended between 3rd January 1914 and 25th June 1915 (2) that a new cause of action arose on 25th June 1915 when the final order confirming the sale of the interests of some only of the judgment-debtors was made and that the time for calculation of the period of limitation for the application of 19th February 1917 arose only on 25th June 1915.

Sect. 9 of the Limitation Act says: “When once time has begun to run, no subsequent disability or inability to sue stops it.” Though this section, in terms, relates only to a suit and not to an application, in Jivraj v. Babaji, Bhagwant Ramchandra v. Khaji Mohamad Abas, the words “to sue” have been taken as iucluding “to apply in execution”. Further the Court auction purchaser who has made the application for possession can hardly be said to rely on any “subsequent disability or inability” (that is, subsequent to the date of sale) to make the application as “disability” and “inability to sue” are not the same as “inconvenience” or “futility” of suing—one of the two branches of his contention is that his right to apply for possession of those interests whose sale was finally confirmed, arose only on the date of that final confirmation and that as the original confirmation of 1913 was modified by the final confirmation of 25th June 1915, he obtained a new cause of action for the application making in conformity with that final order. In Baijnath Sahai v. Ramgut Singh their Lordships of the Privy Council held that a suit for setting aside a sale made on the 25th September 1882 by the District Collector and confirmed by the Commissioner on 25th January 1884, though brought in July 1887 (more than one year from the date of such con firmation), was not barred by Art 12 of Act 15 of 1877, because the Board of Revenue, whether with or without jurisdiction had set aside the Commissioner's order, though it afterwards discharged its own order on 21st August 1886. Their Lordships held that limitation for the suit commenced only from the final order of the Board dated 21st August 1886, because there was no “conclusive and definitive order” confirming the sale while the question whether the sale should be confirmed was under litigation, and until the order of the Commissioner on the 25th January 1884 became definitive and operative by the final judgment of the Board of Revenue on 21st August 1886, in other words, that for the purposes of the law of limitation, there was no final or definitive confirmation of the sale until that date. Their Lordships do not rely upon Sect. 14 of the Limitation Act which relates to the exclusion of time during which proceedings in Court without jurisdiction are being prosecuted; but put it on the broad ground that the sale itself became “confirmed” within the meaning of the expression in the third column of Art. 12 of the Limitation Act only on the date when the proceedings closed before the Board of Revenue, that is, in August 1886, though there had been a confirmation by the Commissioner in 1884 itself. I think the present case is a stronger case for the purchaser than the case reported in Baijnath Sahai v. Ramgut Singh Whereas Art. 12 uses the expression “when the sale is confirmed,” Art. 180 uses the expression “when the sale becomes absolute.” If, on an application made to set aside the sale, an order setting aside the sale in part is passed (as it has been passed in this case), the sale as made cannot be said to have become “absolute'’, though a formal confirmation after the expiry of 30 days had taken place. Further, whereas in the 23 Calcutta case, the Commissioner's confirmation order of 1884 was ultimately upheld by the final order of the Board of Revenue in 1886, the confirmation order of 1913 in this case was modified ultimately by the final order of 1915. I think the principle underlying the decision of their Lordships both in Mussumat Ranee Sumo Moyee v. Shooshee Mookhee Burmonia and Baijnath Sahai v. Ramgut Singh might be invoked in favour of the applicant in this case. That principle (as I understand it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable where in follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities. (The case where the proceedings are by way of appeal is specially provided for by statute law and the decisions based on those special provisions are irrelevant and merely confuse the mind in its analysis of the relevant precedents).

I shall refer to only one more authority. In Nrityamoni Dassi v. Lakhan Chandra Sen their Lordships of the Privy Council confirmed the Full Bench decision of the Calcutta High Court in Lakhan Chunder Sen v. Madhusudan Sen. The judgment of their Lordships on the question of law involved begins by saying “Their Lordships concur generally with the reasons given by the Appellate Court for overruling the plea of limitation.” In the Judgment Lakhan Chunder Sen v. Madhusudan Sen the learned Judges of the Calcutta High Court (the Appellate Court) not only do not rely upon Sect. 14 of the Limitation Act, but expressly say “We feel grave doubt whether the case falls within that section.’ But they rely upon the principle of the Privy Council decision in Mussamat Ranee Surno Moyee v. Shooshi Mokhee Burmonia and hold that the right of the plaintiffs to bring an action to recover the property was suspended between the 20th April 1903 and the 22nd February 1904, because on the 20th April 1903, they had, as defendants, in a former suit, obtained a decree for the same relief as was claimed in their present action which decree however was reversed (on the appeal filed by the plaintiffs of that suit) on 22nd April 1904. Thus the suspension was not by reason of Sect. 14 of the Limitation Act but by reason of the principle that a person is not bound to bring an unnecessary suit or to make futile and unnecessary applications during the course of other litigation proceedings in which he and his opponent had been bona fide engaged for the ascertainment and settlement of the same rights. The rule of law derivable from the decisions of their Lordships seem to have thus two applications according to circumstances (a) creating a fresh cause of aetion under some circumstances (b) suspending the running of time in other circumstances. In Lakhan Chunder Sen v. Madhusudan Sen, (affirmed by the Privy Council in Nrityamoni Dassi v. Lakhan Chandra Sen, the “suspension” principle was applied in the case of a suit also. Mr. Rustomji in his book on Limitation published in 1915 (after Lakhan Chander Sen v. Madhu Sudan Sen, and before Nritayamoni Dossi v. Lakhan Chundra Sen remarks as follows at page 44 (under Sect. 9) about the decision in Lakhan Chunder Sen v. Madhusuden Sen:—“It is difficult to see under what provision of the Limitation Act, the Court held that there was a suspension of the right of suit”. But as their Lordships of the Privy Council have confirmed Lakhan Chunder Sen v. Madhu Sudan Sen approving generally the ratio of its decision, we must hold that notwithstanding Sect. 9 of the Limitation Act, there are exceptional cases where such suspension, even as regards the running of time on the cause of action for a suit can take place. I think that, in either aspect (I am myself inclined to think that in the present case, a new cause of action for this special application for possession of the interests in respect of which alone the sale was finally confirmed arose in 1915), the application for possession in 1917 in this case is not barred by limitation.

Seshagiri Aiyar, J.—I had to consider the Privy Council decisions quoted before us on a number of occasions. I was therefore at first disinclined to write a separate judgment in this case. But as in a case depending upon this judgment and which was posted before Sadasiva Aiyar and Burn, JJ. and myself the subject matter is of a value which will enable the parties to go before the Privy Council, and as I think that some of my observations in the previous Judgments have been, expressed more broadly than they need have been, I have resolved to give expression to my views on the present occasion. By common consent of both parties, notwithstanding the somewhat limited scope of the question referred, arguments were addressed to ascertain the exact scope of the pronouncements of the Judicial Committee on the point, whether in addition to the exceptions enumerated in the Limitation Act it is open to Courts to import a new principle of equity regarding the articles in the first schedule to that Act.

Mr. Sitarama Rao contended that the decision in the case which led to the reference is governed by Baijnath Sahai v. Ramgut Singh In my opinion this contention is right. But I base that conclusion not on the ground that there is a general principle of equity apart from the statute, but because in the present case, the construction to be placed on the third column of Art. 180 of the first schedule is concluded by that decision.

It was suggested in the course of the argument that the decisions of the Judicial Committee on this subject are not reconcilable with each other. After giving my best consideration to this argument, I do not think that this argument is well founded. Broadly speaking the decisions of the Board fall under two heads. Under the first head, come Mussamat Ranee Surno Moyee v. Shooshee Mokhee Burmoniai, Bassu Kuar v. Dhum Singh, Baijnath Singh v. Ramgut Singh, Rangayya Appa Rao v. Bobba Sriramulu, Amma Bibi v. Udit Narain Misra, Nrityamoni Dassi v. Lakhan Chandra Sen Under the second, Huro Pershad Roy v. Gopal Das Dutt, Soni Ram v. Kunhaiya Lal, Rani Kuar Mani Singh Mandhata v. Nawab of Murshidabad(9) It was argued, not without some plausibility, that the first class of cases recognises the doctrine that where a party in whose favour a cause of action has arisen cannot usefully pursue a remedy at the time, his right of action is postponed to a subsequent date. It was next argued that the second class of cases takes a too literal view of the provisions of the Act, and ignores the above principle of equity. This ingenious suggestion of a conflict between law and equity is not borne out by a close examination of the authorities.

In the cases coming under the second head the Judicial Committee have laid down that there can be no saving of limitation apart from the provisions of the Limitation Act. They have drawn attention to Sects 9 and 14 of the Act and have held that exceptions not covered by these and the other sections should not be imported by Courts, to relieve a party from the bar of limitation. I do not think in the first class of cases this principle is overlooked. What has been done is to put a liberal (rather in the language of Oldfield, J. an accurate) construction on the somewhat loosely expressed words in col. 3 of the first schedule. The sections have been more clearly worded than the third column of the first schedule. In a case decided by 5 Judges of this Court to which I was a party, almost every one of us pointed this out with reference to Art. 134 of the Limitation Act. There are other instances of a similar kind. The Judicial Committee have, therefore, placed a liberal construction upon the words in the third column to the schedule. Let us take for example Baijnath Sahai v. Ramgut Singh and the present case. Baijnath Sahai v. Ramgut Singh the party through no fault of his found himself in this unfortunate position. The only authority which could confirm the Revenue sale was the commissioner; no appeal is allowed from his decision. But an appeal was taken to the Board of Revenue against his order and that body admittedly set aside the order though it had no jurisdiction to do so. Both parties were not aware of this defect of jurisdiction. Both of them submitted to the interference by the Board of Revenue. At a subsequent stage the Board of Revenue confessed that their orders were ultra vires and passed proceedings to the effect that the confirmation by the commissioner was right. In these circumstances the Judicial Committee pointed out that the cause of action arose only when the Board of Revenue vacated their former order and ruled that the order of the commissioner was valid. This decision does not ignore either Sect. 9 of the Limitation Act or import a theory of suspension not sanctioned by Sect. 14. In the view of the Judicial Committee, the cause of action should not be regarded as having taken place on a date when no step could be taken to obtain delivery owing to the interference by the Board with the order of confirmation. That is to say, they held that the third column of the schedule should be construed as if it said that the cause of action arose only when a remedy based on it was available. I shall now examine the case before us. The decision Baijnath Sahai v. Ramgut Singh would apply word for word to the facts of the present case. Here there was a confirmation of sale. But the Civil Procedure Code has provided the procedure for that confirmation being challenged; it was in fact challenged; and although one might think that the challenge came after the time allowed by law, it was allowed to be agitated; the Court upheld the challenge to some extent. The third column of Art. 180 ignores these considerations, and insists upon a party, if it is literally interpreted, filing a petition for delivery which owing to the pendency of the petition challenging the confirmation could not be granted. If this case were before the Judicial Committee, I make bold to say that they would hold that the cause of action really arose only when there was a final decision on the challenge. Similar explanation can tie given with regard to every one of the cases which are catalogued under the first head. None of them contravenes the provisions of the Limitation Act as embodied in Sects. 4 to 31. All of them may be said to go to some extent, behind the actual words of the third column and to import into the decision considerations based on the intention of the legislature: but none of them introduce a principle which adds to or subtracts from the statutory exemptions. That is my view of the decisions of the Judicial Committee. Therefore in my opinion the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say by dating the cause of action from a date when the remedy is available to the party. This is a rule of construction and not a rule of law. I would answer the reference as above leaving each case to be dealt with in the light of these observations.

Burn, J.—I agree with the conclusions come to by the learned Officiating Chief Justice in the Judgment just pronounced.

S.S