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TMI Blog1919 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for delivery of possession of the property would be barred under Article 180 if the time of 3 years allowed by the second column be reckoned from the 26th of April 1913 when the sale was confirmed under Rule 92 of Order XXI 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 Rule 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. 4. There can be no doubt that Article 180 applies to cases where the sale is confirmed and thereupon becomes absolute under the provisions of Rule 92. That rule contemplates that such an order is not to be made until the application to set aside the sale under Rule 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 Article 166. The difficulty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 Rule 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 Article 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 Article 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. 6. Upon a proper interpretation, therefore, of Article 180 read with Rule 92 of Order XXI, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confirmation of the sale until that date. 8. 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 Secretary of State v. Raja Vadreva Ranganayakamma A.S. Nos. 113 and 402 of 1917. No doubt there are general observations in some of the cases such as Basu Kuar v. Dhum Singh I.L.R. (1888) 47 where it is stated, 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, 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 I.L.R. (1907)C. 209 and Nrityamoni Dassi v. Lakhan Chandra Sen (1916) I.L.R. 43 C. 660) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sections 12, 14, 15, 16, 19 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 involved in the Appeals Nos. 113 and 402 of 1917 as a Letters Patent Appeal is now pending from my judgment. But as I 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. 9. 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. 10. That question is whether the existence of the cause of action for an application for delivery is suspended during the pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification 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 Aiyer, 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. 14. 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 Basu Kuar v. Dhum Singh I.L.R. (1888) A. 47 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 debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Prannath Roy Ghoudry v. Rookea Begam (1859) 7 M.I.A. 323 and the observations of Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73 are referred to the former dealing with the existence of sufficient cause within the meaning of Bengal Reg. III of 1873, Section 14 and the latter with the English principle reproduced in our Section 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 Mussumat Ranee Surno Moyee's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egoing 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 Section 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 T. Sadasiva Iyer, J. 18. The question referred to the Full Bench is whether the existence of the cause of action for an application for delivery to which Article 180 of schedule 1 of the Limitation Act applies, is suspended during the pendency of the proceedings for the setting aside of the sale. 19. 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 interest of some of the judgment-debtors, and it was upheld as regards the others on 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 25-6-1915, he obtained a new cause of action for the application making in conformity with that final order. In Baijnath Singh v. Ramgut Singh I.L.R. (1896) C. 775 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 25-1-1884, though brought in July 1887 more than one year from the date of such confirmation, was not barred by Article 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 21-8-1866. Their Lordships held that limitation for the suit commenced only from the final order of the Board dated 21-8-1886, 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 25-1-1881 became' definitive and operative by the final judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and merely confuse the mind in its analysis of the relevant precedents). 22. I shall refer to only one more authority. In Nrityamani Dasi v. Lakhan Chandra Sen I.L.R. (1916) C. 660 their Lordships of the Privy Council confirmed the Full Bench decision of the Calcutta High Court in Lakhan Chandra, Sen v. Madhusadan Sen I.L.R. (1907) Cal. 209. 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 in Lakhan Chandra Sen v. Madhusadan Sen I.L.R. (1907) Cal. 209 the learned judges of the Calcutta High Court (the Appellate Court) not only do not rely upon Section 14 of the Limitation Act, but expressly say We feel grave doubt whether the case falls within that section . But they reiy upon the principle of the Privy Council decision in Nussamat Sumomoce v. Shooshee Mokhee Burmonia (1868) 12 M.I.A. 244 and hold that the right of the plaintiffs to bring an action to recover the. property was suspended Between the 20th of April 1903 and the 22nd of February 1904, because on the 20th April 1903 they had, as defendants, in a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exception 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. 24. Mr. Sita Rama Rao contended that the decision in the case which led to the reference is governed by Baijnath Singh v. Ramgut Singh I.L.R. (1896) Cal. 775. 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 Article 180 of the first schedule is concluded by that decision. 25. It was suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a liberal construction upon the words in the third column to the schedule. Let us take for example Baij Nath Singh v. Ramgut Singh I.L.R. (1896) Cal. 775 and the present case. In Baij Nath Singh v. Ramgut Singh I.L.R. (1896) Cal. 775. 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 Section 9 of the Limitation Act or import a theory of suspension not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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