BALGOBIND PRASAD Vs. LILA KUER

JUDGEMENT

(1.) In this appeal by the defendants the serious questions for decision are whether the plaintiff is entitled to maintain the suit after she had adopted a son to her deceased husband, and if so whether the suit is barred by limitation. The facts are not in dispute. On 28 February 1922, one Darbari Lal, in execution of a mortgage decree which he obtained against the defendants, purchased the property in suit. The judgment-debtors filed an application for setting aside the sale under Order 21, Rule 90, Civil P.C., but that application was dismissed on 27 June 1922 on which date the sale was confirmed. In September 1922 the sons of the judgment-debtor, Chaudhury Kashinath, instituted a title suit for a declaration that the mortgage transaction of 25 May 1911, which was the basis of the mortgage decree and sale, was not binding upon those plaintiffs as the money was raised for purposes illegal and immoral, and also for a declaration that the sale did not bind the interest of those plaintiffs. Darbari Lal, the auction- purchaser, was made defendant 31 in that suit. During the pendency of that suit, Darbari Lal died, but before his death Darbari Lal had obtained a formal delivery of possession on 14 August 1924. It appears that he never obtained actual possession. The suit instituted by the sons was dismissed on 31 March 1928, and an appeal to this Court was dismissed on 7 May 1936.

(2.) In pursuance to a will dated 17 April 1924, left by Darbari Lal, all his properties came into possession of his widow, Srimati Lila Kuer, as the absolute owner. In the will, power was given to Srimati Lila Kuer to adopt a son. She adopted a son in accordance with the power granted to her by the will which was duly admitted to probate, but at the date of the institution of the present suit the adopted boy was a minor.

(3.) On 6 May 1939, Lila Kuer instituted a suit giving rise to this appeal for recovery of possession of the properties of which the sale had been confirmed, as stated above, on 27 June 1922. It will be noticed that the suit is beyond twelve years of the date of the sale, and is prima facie barred by limitation. Limitation was sought to be saved by the application of Section 16, Limitation Act, which provides that in computing the period of limitation prescribed for a suit for possession by a purchaser at a sale in execution of a decree, the time during which the proceeding to set aside the sale has been prosecuted, shall be excluded. The plaintiff sought to exclude the entire period between 12 September 1922 up to 7 May 1936. It is conceded that if this period is excluded, the suit is within time. It is to be, however, observed here that in the plaint it was not stated explicitly or by implication that Darbari Lal had obtained possession symbolical or otherwise of the properties in suit.