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TMI Blog1984 (12) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... a Civil Suit No. 82 of 1952 in the Court of Civil Judge, Senior Division, Poona. This suit was filed by a mortgage against the mortgagors and other subsequent mortgages for foreclosure and realisation of the debt by sale of the mortgaged property. Punamchand Shrichand the mortgaged obtained a preliminary decree on 21st November 1952. One K.M. Mody was also joined as defendant No. 10 to the suit as he was a subsequent mortgagee. Punamchand Shrichand proceeded to obtain a final decree and, as none of the mortgagors or subsequent mortgagees could pay the decretal amount, Punamchand Shrichand filed Special Darkhast No. 1 of 1954, in the Court of Civil Judge, Senior Division, Poona, for realisation of the amount by sale of the mortgaged property. Even though the Court granted indulgence for payment of the dues the same could not be paid and finally the mortgaged properties were put up to Court auction. The present plaintiff Kumudini Shah came to the scene for the first time as she purchased the property on 6th August 1957. Objections were preferred for setting aside the sale but were dismissed finally by this Court on 2nd December 1960. With the final dismissal of all objections by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of 1958 confirming the sale of the said properly and premises in favour of the respondent, the petitioner agrees to deposit in Court in the suit referred to in clause 2 hereof an amount of Rs. 800/- per month as rent of the said property and premises and to deposit within 6 months from the date hereof the arrears if any of rent of the said property and premises. The respondent will withdraw all these amounts without prejudice to her contention that the petitioner is not entitled to remain in possession as tenant or otherwise and that she is entitled to recover mesne profits from the petitioner in the event of the final outcome of the suit mentioned in clause 2 hereof being against the petitioner. 5. In the event of the final Court as mentioned above holding that the petitioner is not entitled to be in possession of the said property and premises, the petitioner hereby undertakes to this Hon'ble Court to give vacant possession thereof to the respondent (if necessary by taking possession from Western India Theatres Ltd.) within one year from the date of the final decision . 3. True to his word K.M. Mody filed a suit being Suit No. 1122 of 1961 in the Court of Small Causes, Poo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights and Section 27 provides that at the determination of the period thereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This section would not partake the nature of a law of procedure, but is a substantial law extinguishing rights. 5. Article 51 which was successfully canvassed by the defendants in the trial Court has a legislative history right from the Act of 1871 and the changes which the drafting of the Article went through during the 90 years can best be understood by reproducing them - Article 51 of the Act of 1963 is as under : Act 36 of for the profit of immovable prop three when the profit are received 1963 property belonging to the plaintiff which years have been wrongfully received by the defendant. The next of corresponding Article 109 of the Act of 1908 is in the identical language : Act 9 of 1908 for the profits of immovable pro- three when the profits are revived belonging to the plaintiff year which have been wrongfully received by the defendant. The corresponding Article 109 of the Act of 1877 differs in some particulars : Act 15 of 1877 For the profits of immovable pro- Three Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute the same with due diligence. 9. According to Mr. Paranjape, the learned Counsel for the appellant, the private treaty between the parties having merged into an order of the Court, the possession of Mody was recognized by the parties and the Court to be a lawful one and Mody was to pay Rs. 800/- per month as rent of the property. The character of the occupation of the property by Mody was kept in a state of suspended animation inasmuch as whether Mody was occupying the premises as a tenant or was a trespasser was dependent upon the outcome of the civil suit which Mody proposed to file in the Court of Small Causes at Poona. Counsel continues that if the result of the civil suit in the Small Cause Court at Poona were to go against Shah, Shah would never have been able to obtain Khas possession of the property even though she was armed with a confirmed sale-certificate in her possession. In the alternative, if Mody were to lose in the civil suit, the character of possession would have been pronounced by the Court in a retrospective manner to be that of a tress-passer and the plaintiff would have become entitled to obtain profits of the property in possession of Mody during all thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkhast proceedings was set aside, with the result that there was no pending execution proceeding in the trial Court which had granted the sale-certificate to the plaintiff Shah. The plaintiff Shah agreed not to take any steps to recover possession of the property and the only step which she had taken by filing a Darkhast was also withdrawn. The result was that the auction purchaser was relegated to the stage when she received a sale-certificate as respects the property which proclaimed her title thereto. The parties agreed to fight out their rights in another Court viz. The Small Cause Court, because it was that Court and that Court alone which had jurisdiction to determine the question of tenancy rights. Till the determination was made, the parties had worked out on arrangement as respects the quid pro quo which the auction purchaser was to receive against the continued possession of Mody in the property. Mody was to pay Rs. 800/- per month which has been described as rent. But nothing turns on the label which has been attached to this amount because even Mody in his written statement refers to this amount as mesne profits. Then the parties interpolated a without prejudice clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Act 22 of 1977 which increase was challenged as being unconstitutional. The challenge was upheld and the recovery of 1% was held to be ultra vires. No directions could be given by the court at the time when Haryana Act was declared unconstitutional because these amounts could not be quantified. There was some discussion before the High Court regarding the Article of limitation applicable to such a claim. But the Supreme Court, evolving a new jurisprudence observed (at p. 1038) There is no law of limitation especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs 14. Similarly, in the field of service matter where the dismissal of a government servant was declared illegal by the Court, the Supreme Court, in Jai Chand Sawhney v. Union of India (1970) 2 SCJ 288 had observed that : Salary due to the public servant concerned must be deemed to have accrued month after month because he had been wrongfully prevented from rendering service and the period of limitation under Article 102 commences to run when the wages accrue due ................. Later on, the Supreme Court, in Maimoona Khatun v. State of U.P. (1980)IILLJ164SC , ruled that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit for a declaration of tenancy rights filed by Mody was pending, should be excluded in the computation of the period of limitation. Mr. Paranjape also relied on a decision of the Supreme Court in Anadilal v. Ram Narain [1984]3SCR806 , for the proposition that even a partial stay of execution of the decree staying sale of the attached property in execution proceedings is within sub-section (1) of Section 15 of the Limitation Act, 1908 so as to entitle the decree-holder to claim exclusion of the period during which there was stay of sale but the property was to continue under attachment. This was in answer to Mr. Dalvi's argument that at best the order of the High Court in revision proceedings amounted to a partial stay of proceedings to recover Khas possession of the property or even getting a Receiver appointed, but that there was no stay as respects receipt of mesne profits. 17. Reference was also made to an early case of Calcutta High Court, in Dwijendra Narain Roy v. Joges Chandra De AIR1924Cal600 which laid down that the true test to determine as to when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a ..... 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