RAM KRISHNA KAPOOR Vs. BEHARI LAL RAM SAHAI

JUDGEMENT

(1.) This civil revision filed by the plaintiff arises out of a suit for recovery of arrears of rent. The plaintiff is the auction purchaser of the house. The sale, took place as against defendant No, 2 who was the judgment-debtor on 16th September 1955. This sale was confirmed on 29th May 1957. During ail these years defendant No. 1 has remained in possession of the house as tenant at a rent of Rs. 55/- per mensem. The courts below have found that defendant No. 1 was liable only for a sum of Rs. 110/- because he had paid a sum of Rs. 825/- to defendant No. 2, Rs. 19578/- to the Income-tax Department and Rs. 82/8/- to Municipal Board and all these payments were bona fide payments. The suit was decreed against defendant No. 2 for a sum of Rs. 632/8/-only as the rent of the period prior to three years of the impleadment of defendant No. 2, that is, prior to 11th May 1956 was barred by limitation, it is against this finding that the present revision has been filed.

(2.) It has been contended by the learned counsel for the petitioner that the courts below have committed a mistake in applying three years rule of limitation, probably under Article 109 of the Limitation Act, though the suit was governed by Article 120. His contention is that till the date of confirmation of the sale the person who was entitled to remain in possession of the property and to collect rents and profits from the tenants, was the judgment-debtor and the right of the auction purchaser was only an inchoate right on the basis of which a suit for possession or profit could not be filed. The right to sue for profits between the date of the sale and the date of confirmation accrued in favour of the auction purchaser only after the confirmation of the sale and as defendant No. 2 was impleaded within two years of the date of confirmation the plaintiff was entitled to a decree for the whole of the period.

(3.) In this case defendant No. 2 has remained unrepresented. Sri K. N. Seth has appeared on behalf of defendant No. 1 only. The point which requires determination in this case is as to whether the suit is governed by Article 109 or by Article 120 of the Limitation Act.