VELAYUDHAM PILLAI (DEAD) Vs. THINA VELAYUDHAM PILLAI

JUDGEMENT

(1.) The question that arises in this appeal is whether Article 120 applies or Article 10 of the Limitation Act. The Lower Appellate Court has held, that Article 120 applies, as the words of the third column in Article 10 exclude the position that arises in this case. The plaintiff had never given possession to his vendee and it is found that the second vendee never took possession, because of the fact that the plff. remained in possession which was wrongful. In my opinion, however wide a meaning can be claimed for the words "subject of the sale does not admit of physical possession," it cannot be read as including the case where possession has not been taken for such a reason only. I therefore think that the second alternative position in Article 10 does not apply. That being so, Article 120 will in my opinion apply, because it is a case for which no period of limitation is provided elsewhere.

(2.) The second appeal is dismissed with costs. Krishnan, J.

(3.) This second appeal arises from a suit for pre-emption and the question argued in second appeal is that it is barred by limitation, under Article 10 of the Limitation Act. The Lower Appellate Court has applied Art, 120.