CHHOGAN LAL BAGRI Vs. BEHARI LAL SAHA RAY

JUDGEMENT

(1.) THIS appeal is directed against an order passed by the learned Subordinate Judge, 2nd Court, Mymensingh, on 23 January 1930, holding that an application for delivery of possession made by a decree-holder auction-purchaser was barred by limitation. The purchase was made by the decree-holder at a sale held on 17 September 1924, in execution of a mortgage decree. The judgment-debtor No. 5 applied for setting aside the sale on 31st October 1924, and that application was dismissed on 30 May 1925. The sale was confirmed on that date. There was an appeal by the judgment-debtor against the order dismissing the application for setting aside the sale, and the appeal was dismissed by this Court on 25 July 1927. The application for delivery of possession was made on 18 January 1929. The limitation applicable to such an application would be the one prescribed by Art. 180, Sch. 1, Lira. Act, and it was incumbent upon the purchaser to make the application within three years from the date when the sale in execution of the decree became absolute. There was no question of suspension of the period of limitation or extension of the period of limitation involved in a case like the present. As observed by their Lordships of the Judicial Committee of the Privy Council in the case of Baijnath Sahai V/s. Ramgut Singh (1895) 23 Cal 775, there could be no final, conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation. In the case before us there was the application for setting aside the sale held in execution of the decree, and that application was made within 30 days of the date of the sale. On the facts of this case therefore the decision of this Court in the case of Nechbar Sahai V/s. Prakash Chandra Nag is not an authority against the appellant before us, regard being had to the observations made in that case at (p. 614 of 56 Cal) of the report.

(2.) IN the words of their Lordships of the Judicial Committee of the Privy Council in Baijnath Sahai's case (1895) 23 Cal 775 mentioned above, it could not be said, when the parties were litigating as to whether the sale should be confirmed or not, that the sale had become final or conclusive. The confirmation of the sale therefore dates only from the date when the litigation following upon the application for setting aside the sale terminated on 25 July 1927, the date of the final decision of this Court, in that litigation, and in our judgment the law of limitation was not a defence to this application for delivery of possession made by the decree- holder auction-purchaser, the appellant before us. It may be mentioned that a preliminary objection as to the maintainability of the appeal to this Court was raised on behalf of the respondents. As the order of the Court below was passed on an application under Section 47, Civil P.C., made by the judgment-debtor No. 4, there can be no doubt that the appeal is competent. IN the above view of the case, this appeal must be allowed; the order of the Court below against which this appeal is directed, is set aside, and the appellant's application for delivery of possession made before the lower Court is allowed, with the result that possession is to be delivered by the Court to the appellant as prayed by him. The appellant is entitled to his costs in this Court as also in the Court below. The hearing fee in the appeal to this Court is assessed at three gold mohurs. Let the record be sent down as soon as possible.