ASHUTOSH CHOUDHURY Vs. SMKUMED KAMINI DASI

JUDGEMENT

(1.) This is really an unfortunate case for although the merits of the case are in favour of the appellant we are constrained to arrive at a decision adverse to him on the ground of limitation. It appears that one Hari Sadhan Panja obtained a decree for rent against Asutosh Chowdhury and his cosharers in Rent Suit No. 876 of 1916. One Bhagaban Chandra Pan had the decree assigned to him and he applied for execution of the decree in the year 1920 by sale of the rent property. In that execution the holding in question was sold and it was purchased by a lady of the name of Kumud Kamini Dasi for a price of Rs. 1,255 on 27 July 1920. The sale was confirmed in August. Two of the judgment-debtors, one of whom was an infant, applied on 27 July 1923 under Order 21, Rule 90, Civil P. C, for setting aside the sale. At all subsequent stages this application under Order 21, Rule 90 was prosecuted by Jamini Kanta Chowdhury alone. The application to set aside the sale was allowed in the first instance by an order of the Court dated 12 March 1924. When the sale was set aside by this order the Court gave a direction for refund of the purchase-money with interest to the auction-purchaser. The sale proceeds were in excess of the amount due under the decree and therefore the portion of the surplus sale proceeds remained in deposit for payment to the judgment-debtors, the decree- holder having already taken the sum which was found due to him. In accordance with this order, of refund the auction-purchaser withdrew from the Court a sum of Rs. 442.11-9 which really was to be credited to the judgment-debtors as a part of the surplus proceeds which the judgment-debtors would be entitled to in the event of the sale being confirmed. A direction was given to the decree-holder to refund the amount withdrawn by him.

(2.) The decree-holder however preferred an appeal to the District Judge against the order setting aside the sale. After several intermediate proceedings to which it is not necessary to refer, the sale was ultimately confirmed by an order of the appellate Court dated 17 August 1925. An appeal was however taken to the High Court against the order confirming the sale by one of the judgment-debtors and not by the present appellant Ashutosh Chowdhury. Asutosh however was made a respondent to the said appeal. That appeal was dismissed on 24 March 1927 and on 22 March, 1930 Asutosh put in an application for an order on the auction- purchaser to re-deposit the amount which had been withdrawn by him from the Court out of the surplus sale proceeds.

(3.) The Munsif who dealt with the matter in the first instance was of opinion that the auction- purchaser should be compelled to re-deposit the money which he had withdrawn. On appeal however by the auction-purchaser the District Judge was of opinion that she would not be entitled to retain the surplus sale processes but for the plea of limitation which had been taken by her. The District Judge was of opinion that the right of the judgment-debtor for restitution really accrued on 17 August 1925 when the order setting aside the order setting aside the sale, or in other words the order confirming the sale was made by the District Judge on 17th August 1925 under Art. 181 of the Schedule to the Limitation Act. As this application for restitution was not made within three years from the time when the right to apply accrued the application was barred by the said article. He accordingly dismissed the application of the judgment-debtor for restitution on the ground of limitation.