RAMPARIKHA PANDEY Vs. MTRAMJHARI KUER

JUDGEMENT

(1.) The only question in this appeal is one of limitation. The appellants were the defendants in two actions, to which I shall refer and respondents in an application under Order 34, Rule 6, Civil P. C, for the balance of the purchase price of certain property remaining unsatisfied after the enforcement of the statutory lien. The circumstances are as follows: On 5 February the respondent in this appeal sold certain property to the appellants for a sum of Rs. 6,000. In the kabala there was a recital to the effect that the full consideration had been paid. On 25 April 1924, however, the vendor brought an action claiming a declaration that the sale deed was fraudulent, and that contrary to the recital in the deed the consideration had not been paid in full. This action was dismissed, but it was held that the transaction was a completed one and that a sum of Rs. 4,742 of the consideration remained unpaid. Appeals to the High Court failed. As a result of that, litigation, another suit was brought by the vendor on 28 August 1928 for the enforcement of her statutory charge for the unpaid purchase price. She claimed and succeeded in obtaining a decree for, sale of the property for a sum of Rs. 7,657 against her claim for Rs. 4,742 together with interest. In execution the property was put up for sale and realized a sum of Rs. 6,000, the vendor herself being the purchaser. There remained a balance therefore of Rs. 1,657 as the deficiency which together with interest amounted to Rs. 3,589 which sum she claimed in the application under Order 34, Rule 6. In the Court below the application succeeded and, as regards the question of limitation which arises in this appeal, the learned Judge took the view that if Art. 111, Limitation Act, applied, time ran from 11 July 1928, the date upon which the judgment of this Court was pronounced in the appeal arising out of the case instituted on 25 April 1924, that is to say the date upon which the contract was completed, the defendants then having accepted the title. But in the circumstances it was unnecessary for the Judge to decide that question, as he came to the conclusion that Art. 116, Limitation Act, applied because the right which the applicant was endeavouring to enforce was under a contract in writing registered; and that is the question which is for determination by this Court.

(2.) Mr. Sinha who appears on behalf of the respondent argued that there were three Articles under consideration, Art. 111, Limitation Act, which provides a period, of three years limitation for a vendor of an immoveable property for personal payment of the unpaid purchase money; Art. 116, to which I have already referred providing a period of six years; and Art. 132, a period of 12 years limitation to enforce payment of money charged upon an immoveable property. It is not now contended that Art. 132 applies as it is admitted, and is clearly the fact, that so far as the lady's remedy of enforcing a charge upon the immoveable property is concerned, that was exhausted by her action of 28th August 1928. We are therefore limited to the question whether Art. 116 or Art. 111, Limitation Act, applies. It is contended by Mr. Sushil Madhab Mullick who appears on behalf of the defendants appellants, relying upon certain authorities to which I shall make reference, that Art. 111 applies. On the contrary Mr. Sinha on behalf of the respondent urges that Art. 116 applies, and in support of that contention it is suggested that the applicant was enforcing her contract contained in her conveyance to the defendants, and that there was an implied agreement by the defendants to pay the purchase money. That there was an implied agreement that the purchaser should pay the purchase money under the contract for sale or conveyance cannot be disputed. But that does not dispose of the matter. The manner in which this question arises will appear from the decisions relied upon respectively by the parties to the appeal.

(3.) Reference was first made to the decision in the well-known case in Tricomdas Cooverji Bhoja V/s. Gopinath Jiu Thakur AIR 1916 PC 182, where their Lordships of the Judicial Committee of the Privy Council decided in an action for royalties under a mining lease that although the royalties were in a sense rent, yet as the royalties were payable under a registered contract, the action was governed by Art. 116, Limitation Act, and not Art. 110. This was in consonance with a number of decisions of the High Courts in India and it is needless to say that since the date of that decision in all cases where there has been either a claim for compensation under a contract in writing registered or a claim to enforce sums of money payable under a contract in writing registered, Art. 116 has always been held to apply. It is very largely on the principle of those decisions that Mr. Sinha on behalf of the respondent in this case relies. To revert for the moment to some of the earlier decisions on the point under discussion, I propose first to quote the decision in Avuthala V/s. Dayumma (1901) 24 Mad 233, which is a decision in point. That was an action brought to recover unpaid purchase money due in respect of a sale of land which was held in 1894, and the question there to be considered was whether Art. 111 applied or whether Art. 132, Limitation Act applied. As regards the enforcement of the lien the learned Judges in that case decided that Art. 111 applied to a decision which it is contended and rightly contended has since been overruled. But the second point with which the learned Judges dealt was the question of the period of limitation to be applied to the claim on what was described as the personal remedy. It was there argued that as it was under a registered instrument Art. 116 applied. The learned Judges in the course of their judgment stated: Art. 116 presupposes a contract in writing registered which contract has been broken. Here there was no contract in writing so far as regards the payment of the purchase money. On the contrary the registered document states that the money has been paid, and it is therefore in spite of the document, and not under it that the plaintiff sues.