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Case Number

Appeal from Appellate Order, No. 504 of 1927, against the order of Ashutosh Ghose, Subordinate Judge of Tippera, affirming the order of Hiralal Mukerjee, Munsif of Comilla

Judges

B.B Ghose
N.K Bose, JJ.

Acts

Article 180 of the first Schedule of the Limitation Act
Article 12, Schedule I of the Limitation Act.
Article 180, Schedule I, Limitation Act,
SECTION 18 LIMITATION ACT
provisions of Order XXI, rule 92.
provisions of Article 180
rule 92 of Order XXI,
Order XXI, rule 95

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Smart Summary

Structured Summary of the Opinion (Ghose, J.)

Factual and Procedural Background

This is an appeal by the judgment-debtor against an order of the Subordinate Judge affirming that of the Munsif which rejected the judgment-debtor's objection that the decree-holder's application for delivery of possession under Order XXI, rule 95 of a property (then in the occupancy of the judgment-debtor and purchased in execution of the decree) was barred by limitation.

Key dates and procedural steps appearing in the opinion:

Sale held: 19 May, 1922.
Sale confirmed: 23 June, 1922 (the sale became absolute, according to the judge's statement).
Judgment-debtor applied to set aside the sale: 18 June, 1925.
That application dismissed by the trial court: 29 April, 1926.
Appeal by the judgment-debtor dismissed: 15 September, 1926.
Decree-holder's application for delivery of possession made: 28 February, 1927.
Both the Munsif and the Subordinate Judge held that the application was not barred by limitation and allowed the decree-holder's application; the judgment-debtor appealed.

Legal Issues Presented

Whether Article 180 of the First Schedule of the Limitation Act applies to an application under Order XXI, rule 95 for delivery of possession (the opinion states there is no question that Article 180 applies).
When does the period of limitation begin to run for such an application — specifically, whether it begins from the date the sale was confirmed/made absolute (23 June, 1922) or whether the running of time is suspended during the pendency of the judgment-debtor's application to set aside the sale and thus begins from the date of final disposal of that application (15 September, 1926) — or from some other operative date.

Arguments of the Parties

Appellant's Arguments (Judgment-Debtor)

Article 180 of the First Schedule of the Limitation Act applies to the application for delivery of possession.
Time runs from 23 June, 1922, when the sale became absolute under the provisions of Order XXI, rule 92; if so, the application made on 28 February, 1927 is clearly barred by limitation.
As a subsidiary contention, even if the right to apply for delivery of possession was suspended during the pendency of the judgment-debtor's application to set aside the sale (from 18 June, 1925 to the final disposal by the appellate court), the three-year period would still have expired before 28 February, 1927, and therefore the application is barred in any view.

Respondent's Arguments (Decree-Holder / Respondent in the appeal)

The court below (Subordinate Judge) relied on the Full Bench decision in Muthu Korakkai Chetty v. Madar Animal in which it was observed that the period of limitation should be computed from the date of the order disallowing the petition for setting aside the sale (i.e., after final disposal), effectively treating the cause of action as suspended during the pendency of proceedings to set aside the sale.
Reliance was placed on Surno Moyee v. Shooshee Mokhee Burmonia — interpreted by respondent as supportive of suspension or accrual at the date of setting aside — and on Baijnath Sahai v. Ramgut Singh (strong reliance).
It was contended that under rule 92 of Order XXI the court can make an order confirming the sale only when no application is made or where such an application is made and disallowed, and therefore the order made under rule 92 in the present case was not an effective order because an application was in fact made under rule 90 (i.e., the sale confirmation should not be treated as final while a rule 90 application exists).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Muthu Korakkai Chetty v. Madar Animal (Madras Full Bench)	Whether existence of cause of action for an application under Article 180 is suspended during pendency of proceedings for setting aside the sale; observed (by the Officiating Chief Justice Sir Abdur Eahim, with majority) that limitation should be computed from the date of order disallowing the petition to set aside the sale.	The Subordinate Judge relied on this Full Bench decision to hold that the period commenced from the final disposal (15 Sept. 1926). Ghose, J. stated with respect he was unable to agree with the opinion of the majority in that case and considered it not really an answer to the referred question; he declined to treat it as controlling for the present matter.
Surno Moyee v. Shooshee Mokhee Burmonia	Example where cause of action accrued when an auction sale was set aside and restoration to possession occurred; the Judicial Committee held limitation should run from the date the sale was set aside (as the landlord had no cause of action while purchasers were in possession by virtue of the sale).	Ghose, J. said the question and facts in that case were quite different from the present case and therefore the decision is not controlling; the court considered the case distinguishable and unnecessary to rely on in the present matter.
Baijnath Sahai v. Ramgut Singh	Held that where an order confirming a sale was set aside in earlier proceedings and only later finally restored, there was no final or definitive confirmation of the sale until the final order restoring it; limitation for setting aside could not run while confirmation was not definitive and operative.	Ghose, J. relied on the factual distinction: in Baijnath Sahai the confirmation had been actually set aside and was not in existence during the litigation, whereas in the present case the order confirming the sale was never set aside and remained effective. Therefore the judge held Baijnath Sahai distinguishable and not applicable to prevent the running of limitation from 23 June, 1922.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps (as stated in the opinion):

The court accepted that Article 180 of the First Schedule of the Limitation Act applies to an application under Order XXI, rule 95 for delivery of possession.
The core factual question for limitation was identified as when the period of limitation begins to run; the Limitation Act's wording in the third column is “when the sale becomes absolute.”
The appellant contended that time runs from 23 June, 1922 when the sale became absolute under Order XXI, rule 92. If so, the application of 28 February, 1927 would be out of time.
The Subordinate Judge had followed the Full Bench view in Muthu Korakkai Chetty that the cause of action is suspended during the pendency of proceedings to set aside the sale and that limitation should be computed from the date of the order disallowing the petition to set aside the sale (i.e., after final disposal on 15 September, 1926). The opinion records that the Full Bench contained differing views (Oldfield, J. dissenting; Sadasiva Ayyar, J. agreeing with suspension).
Ghose, J. examined other authorities relied on by the respondent. He found Surno Moyee distinguishable because the facts were different (there the sale was set aside and then restoration occurred, so the landlord had no cause of action during the interval).
He analyzed Baijnath Sahai at length and extracted the principle that when an order confirming a sale is actually set aside and only later re-established, there is no definitive confirmation until restoration. He distinguished Baijnath Sahai from the present case on the ground that in Baijnath the confirmation had been set aside by the Board of Revenue and thus was not operative during the interim, whereas in the present case the order confirming the sale was never set aside and remained effective from 23 June, 1922.
On the respondent's contention regarding rule 92 of Order XXI (that an order under rule 92 is effective only where no application is made or where such application is disallowed), Ghose, J. reasoned that rule 92's purpose is to require a confirming order where no application is made within the statutory period (Article 166 gives 30 days for making such an application). He held that if an order confirming the sale has been made it should be considered effective so long as it is not set aside; an extension of time or application under rule 90 does not render the previously made confirmation order ineffective unless and until it is set aside.
Ghose, J. expressed inability to agree with the majority in Muthu Korakkai Chetty and said that that Full Bench decision "was not really an answer to the question referred to the Full Bench." He stated it was unnecessary for him to decide whether the period of limitation was suspended during the pendency of the set-aside application, because even if suspension were assumed, the present application would still be barred.
Thus he concluded that the period of limitation in this case commenced to run from 23 June, 1922 (the date the sale became absolute), and not from the date of final dismissal of the judgment-debtor's set-aside application.

Holding and Implications

Holding: The appeal is allowed; the decree-holder's application for delivery of possession is dismissed as barred by limitation.

Consequences and immediate effects on the parties (as expressly stated in the opinion):

The application made by the decree-holder is held to be barred by limitation and is dismissed.
The appeal by the judgment-debtor is allowed.
Costs are awarded against the decree-holder in all courts.
The hearing fee is assessed at three gold mohurs.

Broader implications: The opinion contains a specific conclusion about the computation of limitation in the facts of this case (limitation running from the date the sale became absolute where the confirming order was never set aside). The opinion does not assert that it is establishing any broad new precedent beyond the holding in this case; it expressly distinguishes and declines to follow the majority view of a cited Full Bench decision (Muthu Korakkai Chetty) for the present circumstances.

Judge concurring: Bose, J. — "I agree."

Reported judge writing the opinion: Ghose, J.

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Neckbar v. Peakash Chandra Nag Chaudhuri

Ghose, J.:— This is an appeal by the judgment-debtor against the order of the Subordinate Judge affirming that of the Munsif by which he rejected the objection of the judgment-debtor that the application made by the decree-holder for delivery of possession under Order XXI, rule 95 of a certain property which was in the occupancy of the judgment-debtor and which the decree-holder had purchased in execution of his decree was barred by limitation. The sale was held on the 19th May, 1922. It was confirmed on the 23rd June, 1922. On the 18th June, 1925 an application was made by the judgment-debtor to set aside the sale. That application was dismissed on the 29th April, 1926 by the trial court. The judgment-debtor appealed against that decision and that appeal was also dismissed on the 15th September, 1926. The decree-holder made the application for delivery of possession on the 28th February, 1927. The objection of the judgment-debtor is that this application is barred by limitation. Both courts have answered the question in the negative and have allowed the application of the decree-holder.

There is no question that Article 180 of the first Schedule of the Limitation Act applies to such an application as this. The question is when the period of limitation begins to run. The words in the third column of the Limitation Act are “when the sale becomes absolute.” The contention on behalf of the appellant is that time runs from the 23rd June, 1922 when the sale became absolute under the provisions of Order XXI, rule 92. If that is so, then the application, which had been made nearly five years after that date is clearly barred by limitation. It is also contended as a subsidiary proposition that even if it be held that the right to apply for delivery of possession was suspended from the date when the judgment-debtor made his application for setting aside; the sale on the 18th June, 1925 till the date of the final disposal of his application by the appellate court, even then the period of three years had expired before the 28th February, 1927, and in any view of the case the application is barred by limitation. The learned Subordinate Judge has held that the period commenced from the final disposal of the application for setting aside the sale made by the judgment-debtor, that is, on the 15th September, 1926, and therefore the application is within time. The learned Subordinate Judge relies upon the Full Bench case of the Madras High Court Muthu Korakkai Chetty v. Madar Animal and in particular the observations made in the judgment of the Officiating Chief Justice, Sir Abdur Eahim. In that case the facts were similar to the present case. The question which was referred to the Full Bench for answer was, “whether the existence of the cause of action for an application for delivery of possession to which Article 180, Schedule I, Limitation Act, lapplies is suspended during the pendency of proceedings for setting aside of the sale.” In answering that question the Officiating Chief Justice made the observation which was assented to by the majority of the Judges that the period of limitation should be computed from the date of the order disallowing the petition for setting aside the sale on the ground of fraud and not from the date of the first confirmation. Oldfield, J. was of the contrary opinion and he held that the answer should be that when once a cause of action has arisen it is not suspended by later events. Sadasiva Ayyar, J., held that the cause of action was suspended during the interval of the pendency of the application for setting aside the sale.

On behalf of the respondent it is urged very forcibly that the whole cause of action should be held to be suspended up to the 15th September, 1926. Reference has been made to the case of Surno Moyee v. Shooshee Mokhee Burmonia. The question in that case, however, was quite different from the present one. There the zemindar sold a patni under Regulation VIII of 1819 for arrears of rent. The patnidar brought a suit for setting aside the sale. That was allowed after a good deal of litigation when the patnidars who had been dispossessed by the purchasers were restored to possession with mesne profits to be paid by the purchasers. After the restoration, the zemindar brought a suit for rent for the period during which these patnidars were out of possession. It was held by the Judicial Committee that the cause of action accrued at the date when the auction sale was set aside and limitation should run from that date. It was held that when the purchasers were in possession and the old patnidars were out of possession by virtue of the sale under Regulation VIII of 1819, the landlord had no cause of action, as she was in the position of a person whose claim had been satisfied. It is, however, unnecessary to discuss the question as regards the suspension of the period of limitation which has been decided in some cases by the Privy Council. The cases fall under two classes, where there is suspension of the running of the time under certain circumstances and where the cause of action has arisen afresh at a certain time. The case on which the respondent very strongly relies is that of Baijnath Sahai v. Ramgut Singh.

In that case the question was whether a suit brought by a person for setting aside a revenue sale was barred under Article 12, Schedule I of the Limitation Act. The facts shortly stated were these:—The revenue sale was held on the 24th September, 1882. It purported to have been confirmed by the Commissioner on the 25th January, 1884 who refused the petition of the owner for setting aside the sale. The plaintiff then being dissatisfied with the order of the Commissioner made an application to the Board of Revenue. The Board of Revenue set aside the order of the Commissioner confirming the sale on the 12th August, 1884 and sent back the proceedings before the Collector. The result was that the order of the Collector confirming the sale on the 25th January, 1884 was discharged and the sale remained unconfirmed. The Collector on receiving the proceedings back refused to confirm the sale. There was an appeal again to the Commissioner who held that he had no jurisdiction to entertain the appeal. Then the defendant in the suit appealed again to the Board of Revenue, and on that occasion the Board of Revenue reversed their previous judgment holding that everything that had been done by them was without jurisdiction. They discharged their previous order and they also discharged the subsequent order of the Collector, the result of which was that they confirmed the order of the Commissioner confirming the sale which was passed on the 25th January, 1884. This order was made on the 21st August, 1886 and from that date the order of the Commissioner of the 25th January, 1884 became an operative order. Upon these facts, their Lordships held 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.” Strong reliance has been placed upon these words, and it is contended that there was no final or definitive confirmation of the sale in this case until the application of the judgment-debtor to set aside the sale was dismissed finally in September, 1926. Now the difference between the case of Baijnath Sahai v. Ramgut Singh and this case is that in Baijnath Sahai's case the order which the plaintiff wanted to set aside by his suit was actually set aside by the Board of Revenue, and it was, after vicissitudes of fortune, that the order was finally restored on the 21st August, 1886. Under those circumstances it seems to me that their Lordships held that the plaintiff could not bring a suit for setting aside the order confirming the sale of January, 1884 before August, 1886. That order was really not in existence in the interval, it having been set aside by the Board of Revenue in August, 1884. To my mind that is the distinction between that case and the present case, that in the present case the order confirming the sale was never set aside but remained an effective order throughout. The sale became absolute, as I have already stated, on the 23rd June, 1922. Up to the 18th June, 1925 nothing happened and in the ordinary course the application for delivery of possession would have been barred after the lapse of about five days if the judgment-debtor had not made any application for setting aside the sale. The mere fact that the judgment-debtor had made such an application did not prevent the decree-holder from making his application for delivery of possession. It Baijnatji Sahai's case when there was no order confirming the sale in existence the plaintiff could not bring a suit for setting aside the sale. Here the decree-holder could always make his application for delivery of possession, and I do not see any reason why the provisions of Article 180 should not be given effect to.

It is, however, contended on behalf of the respondent that under rule 92 of Order XXI, the court can make an order confirming the sale only when no application is made or where such application is made and disallowed and thereupon the sale becomes absolute. It is urged that in the present case although the court made an order confirming the sale which had the effect of making the sale absolute, still an application was made under rule 90 and therefore the order which was made under rule 92 was not an effective order. The answer to that contention seems to me that the meaning of that rule is that, where no such application is made under the ordinary rules of limitation, the order confirming the sale should be made. Article 166 gives the period of 30 days for making such an application, and when no application is made within that period, the court has to make the order under rule 92. I do not think that, if for some reason or other, that is by the operation of section 18 of the Limitation Act or for some other reason, the judgment-debtor prays for the time for making the application for setting aside the sale being extended, the order which has already been made confirming the sale should be considered as ineffective. That order should be considered to be effective so long as it is not set aside. With very great respect I am unable to agree with the opinion of the majority of the Judges in the case of Muthu Korakkai Chetty which was not really an answer to the question referred to the Full Bench. It is not necessary for me to decide in this case whether the period of limitation was suspended during the pendency of the hearing of the application of the judgment-debtor for setting aside the sale, for assuming that to be so the present application would be barred. In my opinion, the period of limitation in this case commenced to run from 23rd June, 1922.

On all these grounds in my opinion the application made by the decree-holder is barred by limitation. The appeal is allowed and the application of the decree-holder is dismissed with costs in all courts. The hearing fee is assessed at three gold mohurs.

Bose, J.:— I agree.

R.K.C

Neckbar v. Peakash Chandra Nag Chaudhuri

Structured Summary of the Opinion (Ghose, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Judgment-Debtor)

Respondent's Arguments (Decree-Holder / Respondent in the appeal)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Neckbar v. Peakash Chandra Nag Chaudhuri

Comments