JATEENDRA CHANDRA BANDOPADHYAY Vs. REBATEEMOHAN DAS

JUDGEMENT

(1.) The facts, which give rise to the present appeal, are as follows: One Rajchandra was the owner of certain properties. He executed a will on 18 September 1888, by which he bequeathed his properties to his grandsons, i.e., son's sons, Rajendra and Jogendra. Rajchandra died on 28 November 1899, leaving Girish as his only son. On 29 October 1911 Girish mortgaged the properties, which are the subject matter of the present litigation, to the respondents. The respondents obtained a mortgage decree on the basis of the said mortgage against Girish on 3 December 1917. On 2 December, 1924, Chandrakala, the wife of Girish, who was appointed executrix by the will of Rajchandra, obtained probate in common form. Subsequently, the probate proceedings were contested and the probate was ultimately issued to Chandrakala on 25 May 1927. On 2 January, 1925 Chandrakala instituted a suit for a declaration that the mortgaged properties were not liable to be sold on the allegation that the mortgagor had no title to the property, that the property vested in her by virtue of the will and that she was in possession thereof as executrix to the estate of Rajchandra.

(2.) The said suit was numbered and registered as suit No. 1 of 1925 of the first Court of the Subordinate Judge at Dacca. A temporary injunction was issued by the Subordinate Judge, restraining the decree-holder from selling the mortgaged properties during the pendency of the suit. The said injunction however was ultimately dissolved on the 1 December 1925. The mortgaged properties were sold On 7 April 1926, and purchased by the decree-holders. On 10 May 1926, the sale was confirmed. On 23 August 1926, the decree-holder purchasers applied for delivery of possession. The auction-purchasers could not however get possession on account of the resistance offered by Chandrakala at the time, when the nazir of the Court went to deliver possession. The application was thereafter dismissed for default on 13th November 1926. The suit instituted by Chandrakala was decreed on 14 May 1928, and it was declared that Girish had no right to mortgage the properties in question and that the mortgage by Girish was infructuous and inoperative against those properties and the execution sale in execution of the decree was not binding against the properties. It was also declared that the plaintiff as executrix had a right to the properties. An appeal was thereupon taken by the decree-holder, auction-purchasers, to this Court which was registered as First Appeal No. 352 of 1928. On 15 July 1931, this Court allowed the appeal and dismissed Chandrakala's suit. On 8 October 1931, the-auction-purchasers applied to the Court for delivery of possession. Thereupon the judgment-debtors took the objection that the application was barred by limitation. The learned Subordinate Judge overruled the objection of the judgment-debtors and ordered delivery of possession. Hence the present appeal by the judgment-debtors.

(3.) The only point for decision in this appeal is whether the application for delivery of possession is barred by limitation. Under Section 3, Lim. Act, subject to the provisions contained in Secs.4 to 25 of the said Act, an application made after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been pleaded. Under Art. 180, Schedule 1, Lim. Act, an application by a purchaser of immovable property at a sale in execution of a decree for delivery of possession is to be made within 3 years from the time when the sale becomes absolute. The present application by the auction- purchaser was admittedly made beyond three years from 10 May 1926, when the sale was confirmed. It was however contended by the learned advocate for the respondents that under Section 15, Lim. Act, in view of the decree of the Subordinate Judge on 14 May 1928, in the suit of Chandrakala, the auction-purchasers were entitled to deduct the period from 14 May 1928 to 15 July 1931 in computing the period of limitation prescribed by Art. 180. Section 15, Lim. Act. however refers to a suit or, an application for the execution of a decree. The application for delivery of possession by the auction-purchasers may be treated as an application in an execution proceeding but it cannot be treated as an application for execution. Section 15, Lim. Act, therefore does not help the auction-purchasers in this case. Section 14, Lim, Act, also is not attracted in this case, inasmuch as the auction-purchasers were not in the plaintiffs in the suit before the Subordinate Judge, which was instituted on 2 January, 1925, but were resisting the claim of Chandrakala in the suit as defendants. It was however contended by Dr. Basak on the authority of the observations of the Judicial Committee in Nrityamoni Dassi V/s. Lakhan Chandra Sen 1916 PC 96. on the principle analogous to the provisions of Section 14, Lim. Act, limitation would remain in suspense at least from 14 May 1928 to 15 July 1931, as the auction-purchasers were bona fide litigating their rights in a Court of Justice. In view of the provisions of Section 3, Lim. Act, it is not permissible to claim any exemption apart from what is contained in the Limitation Act.