NECKBAR Vs. PRAKASH NAG CHOUDHARI

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against the order of the Subordinate Judge affirming that of the Munsiff by which he rejected the objection of the judgment-debtor that the application made by the decree-holder for delivery of possession under Order 21, Rule 95 of a certain property which was in the occupancy of the judgment-debtor and which the decree-holder had purchased in execution of his decree was barred by limitation. The sale was held on 19 May 1922. It was confirmed on 23 June 1922. On 18 June 1925 an application was made by the judgment-debtor to set aside the sale. That application was dismissed on 29 April 1926 by the trial Court. The judgment-debtor appealed against that decision and that appeal was also dismissed on 15 September 1926. The decree-holder made the application for delivery of possession on 28 February 1927. The objection of the judgment-debtor is that this application is barred by limitation. Both Courts have answered the question in the negative and have allowed the application of the decree-holder.

(2.) There is no question that Art. 180, Schedule 1, Lim. Act, applies to such an application as this. The question is when the period of limitation begins to run. The words in the third column of the Limitation Act are when the sale becomes absolute. The contention on behalf of the appellant is that time runs from 23 June 1922 when the sale became absolute under the provisions of Order 21, Rule 92. If that is so, then the application, which had been made nearly live years after that date is clearly barred by limitation. It is also contended as a subsidiary proposition that even if it be held that the right to apply for delivery of possession was suspended from the date when the judgment-debtor made his application for setting aside the sale on 18th-June 1925 till the date of the final disposal of his application by the appellate Court, even then the period of three years had expired before 28 February 1927, and in any view of the case the application is barred, by limitation the learned Subordinate Judge has held that the period commenced from the final disposal of the application for setting aside the sale made by the judgment-debtor, that. is, on 15 September 1926, and therefore the application is within time. The learned Subordinate Judge relies upon the Full Bench case of the Madras High Court Muthu Korakkai Chetty V/s. Madar Animal [1920] 43 Mad. 185 and in particular the observations made in the judgment of the Officiating Chief Justice, Sir Abdur Rahim. In that case the facts were similar to the present case. The question which was referred to the Full Bench for answer was: whether the existence of the cause of action for an application for delivery of possession to which Art. 180, Schedule 1, Lim. Act, applies is suspended during the pendency of proceedings for setting aside of the sale.

(3.) In answering that question the Officiating Chief Justice made the observation which was assented to by the majority of the Judges that the period of limitation should be computed from the date of the order disallowing the petition for setting aside the sale on the ground of, fraud and not from the date of the first confirmation. Oldfield, J. was of the contrary opinion and he held that the answer should be that when once a cause of action has arisen it is not suspended by later events. Sadasiva. Ayyar, J. held that the cause of action was suspended during the interval of the pendency of the application for setting aside the sale.