Coxe, J.:— The facts in this case are not disputed. The appellant's property was sold in execution and purchased by the decree-holders. The sale was confirmed in April 1908. The judgment-debtor appealed to this Court. The appeal was compromised in June 1909. The terms of the compromise were that the sum due should be settled at Rs. 22,000 which the judgment-debtor was to pay with interest in certain instalments, the first being a year after the decree, that is to say, in June 1910. If the judgment-debtor paid the whole amount due in time, the sale was to be set aside. If he failed in any instalment, the sale was to stand good and the appeal to stand dismissed. He paid nothing and in July 1912, after preliminary proceedings lasting for about a year and a half, the decree-holder applied for delivery of possession. The judgment-debtor objected that the application was barred by Article 180 of the schedule to the Limitation Act, being presented more than three years after the date of the confirmation of the sale. The learned Subordinate Judge held that the sale did not become absolute until June 1910, when the judgment-debtor first defaulted and has granted the application for delivery of possession. The judgment-debtor appeals.
2. A preliminary objection is taken that no appeal lies. I cannot accept this view for the reasons given in Hari Charan Dutt v. Mon Mohan Nandi . A.I.R 1914 Cal. 302.
3. I think that the Subordinate Judge is right. It was agreed between the parties that on a certain contingency the sale should be set aside. That agreement had the effect of suspending the confirmation of the sale. While that agreement lasted the decree-holder was precluded from reaping any benefit from his purchase and as the judgment-debtor obtained the valuable advantage of five years' time to pay off his debt, he cannot be heard to say that the sale was final in 1908. It is argued that the stipulation, that the sale was to stand good in the event of default, implied that it was to stand good with effect from its date.
4. But clearly the parties were not adverting to the period from which the sale was to take effect, and all that the stipulation means in ordinary English is that if the money is not paid, the sale is not to be set aside. I think therefore that the judgment-debtor is precluded by his own conduct from pleading that the sale was final in 1908.
5. The decision of the Court below may also be supported on the principle laid down in Ranee Surno Moyee v. Shooshee Mokhee Burmonia . [1869] 11 W.R 5. That was a case in which the plaintiff brought a patni to sale under the patni regulation. The sale was set aside on suit by the patnidar. The plaintiff then brought a suit for the rent that had accrued due during the suit. It was held by the Judicial Committee that the right to sue was suspended during the time that the suit for setting aside the sale was pending. The arrears were taken to have become due when the patnidar was restored to possession.
6. That the general principle laid down in that decision is not based merely on the construction of the Rent Act is shown by the cases of Surjiram Marwari v. Barhamdeo Prasad . [1905] 1 C.L.J 337. and Lakhan Chandra Sen v. Madhu Sudan Sen . [1908] 35 Cal. 209, in which the principle was held to cover cases of an altogether different nature. The test whether the principle applies or not is explained in Huro Pershad Roy v. Gopal Das Dutt . [1833] 9 Cal. 255, and is the possibility or otherwise of obtaining the relief ultimately claimed during the pendency of the previous proceedings.
7. Now, in the present case if the decree-holder between June 1909 and June 1910, had asked to be put in possession, which is the relief that he now seeks, he would have been met by the compromise decree and could not possibly have succeeded. I think therefore that this case satisfies the test laid down in Huro Pershad Roy v. Gopal Das Dutt, and comes within the scope of the decision of Ranee Surnomoyee v. Shooshee Mokhee Burmonia. It is evidence that the decree holder was in no way negligent. As soon as the first default was made no applied for a sale certificate as a necessary preliminary to getting possession. The judgment-debtor put in a number of objections. It is hardly conceivable that they were of any substance or honesty but the Subordinate Judge saw fit to devote to them an amount of time altogether disproportionate to their importance and much more than a year seems to have been spent over these litigations and dilatory proceedings. The decree-holder is in no way to blame for the time that has elapsed since the sale, and the judgment-debtor cannot be allowed to profit by his own wrong and escape liability altogether simply because he has induced the decree-holder to grant him an indulgence of which he was apparently unworthy. In my opinion the decision of the Subordinate Judge is right and the appeal mush be dismissed with costs.
D. Chatterjee, J.:— I agree.
V.B/R.K
8. Appeal dismissed.