CHANDRA MANI SAHA Vs. ANARJAN BIBI

JUDGEMENT

(1.) These are two consolidated appeals from two decrees dated 19 August 1930, of the High Court of Judicature at Port William in Bengal, which reversed two orders dated 28 February, 1929, of the Court of the First Subordinate Judge of Tippera at Comila. The question for determination is, whether the appellants, who purchased with the leave of the Court at two auction sales certain mortgaged property in execution of two mortgage decrees in their favour, are entitled to delivery of possession of the said property. It was alleged on behalf of the respondents that the two applications which were made by the appellants for delivery of possession of the said property were out of time and barred by the Limitation Act 1908. The Subordinate Judge held that the applications were not barred and made an order for delivery of possession of the property referred to in each application. Respondents 1 to 3 appealed in each case to the High Court, and on 19th August 1930, the learned Judges of the High Court delivered a judgment which disposed of the two appeals. In pursuance thereof decrees were made setting aside the orders of the Subordinate Judge and dismissing the applications for possession on the ground that they were barred by the Limitation Act. From these decrees the appellants have appealed to His Majesty in Council. The respondents were not represented. The material facts are as follows:-

(2.) In 1901 respondents 1 to 8 or their predecessors executed a mortgage in respect of 19 immovable properties in favour of appellant 1 who took the mortgage for himself and his cosharers the other appellants or their representatives. In 1914 the appellants sued on the mortgage making the mortgagors respondents 1 to 8 or their predecessors principal defendants and the remaining respondents or their predecessors pro forma defendants. On 10 July 1919, the final mortgage decree for sale was passed. The same respondents executed in 1903 in favour of the appellants another mortgage in respect of the same 19 and 19 other immovable properties and in 1914 the appellants sued the respondents in the same manner as mentioned before. On 10 July 1919, the final mortgage decree for sale was passed. In March 1922, the appellants took out execution of both decrees, the first for Rs. 19,315-3-0 and the second for Rs. 32,180-15-9. At auction sales in execution in both cases the appellants purchased with the leave of the Court on 10 February 1923, the mortgaged properties, in the first case for Rupees 18,225 and in the second case for Rs. 30,026. Applications, to the Subordinate Judge were made on behalf of the judgment-debtors under O. 21, R. 90, Civil P. C. 1908, to set aside the sales. On 15 April 1923 the Subordinate Judge made orders disallowing the said applications, and on 22 April, 1924, he confirmed the sales in pursuance of O. 21, R. 92, of the said Code. On 21 July 1924 appeals by certain of the judgment debtors were filed in the High Court against the orders of the Subordinate Judge, dated 15 April 1924.

(3.) On 17 March 1927, the High Court dismissed the said appeals. In pursuance of O. 21,R. 94, the Subordinate Judge granted sale certificates to the appellants in the first case on 19 May 1928, and in the second case on 6 June 1928. On 10 September 1928, the appellants made an application in each case to the Subordinate Judge for possession of the properties purchased by them at the said auction sales. The applications were made under O. 21, R. 95, Sch. 1, Civil P.C. Respondents 1 to 3 objected to the said applications on the ground that they were barred by limitation. They alleged that the sales had become absolute on 22 April, 1924. When the Subordinate Judge confirmed the sales, and that inasmuch as the applications for delivery of possession were not made until 10 September 1928, the said applications were out of time by reason of Art. 180, Lim. Act, which provides that such an application must be made within three years from the time when the sale becomes absolute. As already stated, the Subordinate Judge held that the applications were not out of time; he considered that inasmuch as the judgment-debtors appealed against his orders of 15 April 1924, time did not begin to run until the date of the disposal of the appeals, viz., the 17 March 1927, and therefore, the applications for possession made on 10 September 1928 were made within three years specified by Art. 180, Lim. Act. The learned Judges of the High Court were of opinion that the sale became absolute on 22 April, 1924, when the Subordinate Judge confirmed the sales, and therefore that the applications for possession, which were made on 10 September 1928, were barred by reason of the said article.