AMRITA LAL BAGCHI Vs. JOGENDRA LAL CHOWDHURY

JUDGEMENT

(1.) THE only question which has been raised in support of this appeal is whether the District Judge was correct in the view which he took that the limitation applicable to the present suit was that provided by Article 120 of the second Schedule of the old Limitation Act, that is to say, six years. THE suit was brought by the auction-purchaser to recover the sum of Rs. 1,600 from the defendant No. 1 who had, after the sale and the deposit of the money in Court, attached that sum in execution of his decree against the judgment-debtor as representing the surplus sale-proceeds belonging to the original judgment-debtor after satisfaction of the decree obtained against the debtor by the decree-holder. THEre can, in our opinion, be no doubt that the present plaintiff would be entitled to recover the money from the present appellant, who was the defendant No. 1 in the lower Courts, either by an application made under Order XXI, Rule 93, Civil Procedure Code, or as he has done in the present case by a suit. For the purposes of the suit it would be necessary for him to make parties to it the judgment-debtor and the decree-holder.

(2.) IN support of the present appeal, it has been argued that the proper Article of Limitation applicable to the present suit is Article 97 of Schedule II of the old Limitation Act. IN support of this view the decision of the Privy Council in the case of Hanuman Kamat v. Hanuman Mandur (1891) I.L.R. 19 Calc. 123; L. R. 18 I. A. 158 has been relied on, as also the case of Ram Kumar Shaha v. Ram Gour Shaha (1909) I.L.R. 37 Calc. 67; L. R. 18 I. A. 158. 13 C. W. N. 1080. Both of these cases are, in our opinion, distinguishable from the present case. The former is a case in which a member of a joint family attempted to sell certain properties, and his other co-sharers objected. The purchasers then sued for the return of the purchase- money, and their Lordships of the Privy Council held that the case must fall either under Article 62 or Article 97 of Schedule II of the Limitation Act. That, however, was a suit between the original contracting parties to the sale, whereas in the present case it is impossible to contend that the person whose property was sold was in fact a willing party to the transaction, or that the present suit is one between the two original contracting parties. IN fact the sale was brought about at the instance of the decree-holder, and the property sold was the property of the judgment-debtor, and the present suit is brought against a third person who attached some of the sale-proceeds as being the property of the judgment-debtor. This certainly cannot be regarded as a suit between the two contracting parties to the sale. IN the same way in the case of Bam Kumar Shaha v. Bam Gour Shaha (1919) I.L.R. 37 Calc. 67; 18 C. W. N. 1080 the decree-holder had sold as the property of his debtor property which belonged to a third person, and, in that case, it was held that a suit would lie by the purchaser against the original decree-holder, and that the limitation applicable would be that provided by Article 62 of the second Schedule of the Limitation Act. IN our opinion both these two Articles contemplate a suit brought by one of the contracting parties against the other to recover the money which has been paid at the sale, which owing to the default on the part of the vendor has became infructuous. The present case is not, however, of the same nature at all: and we think that the District Judge was quite right in holding that it did not fall within the provisions of either Article 62 or Article 97 of Schedule II of the Limitation Act. The learned Judge has relied on a case of the Madras High Court: Nilakanta v. Imam Sahib (1893) I.L.R. 16. Mad. 361. That decision appears to be applicable to the facts of the present case, and, agreeing with it, we hold that the only limitation applicable to the present suit must be that provided by Article 120 of Schedule II of the old Limitation Act. As the present suit was instituted within six years from the date when the sale was declared by this Court to be invalid, we think that the learned Judge was quite right in holding that the suit was not barred by limitation. No other points have been taken in support of the appeal. The appeal fails and is dismissed with costs.