RADHAKANT JHA Vs. MAHA JHA

JUDGEMENT

(1.) This appeal is brought on behalf of the decree-holders against the order of the Additional District Judge of Darbhanga, dated the 29th February, 1960, holding that the execution of the decree obtained by the decree-holders in Title Suit No. 178 of 1944 is barred by limitation.

(2.) It appears that the appellants obtained a decree in Title Suit No. 178 of 1944 against the respondents for recovery of possession of holding No. 18 of village Bajraha. The holding was sold for arrears of rent against the recorded tenant Anirudh Jha and purchased by Raj Darbhanga on the 8th April, 1937, in the execution case. The Raj Darbhanga obtained delivery of possession of the holding by process of the executing court on the 3rd September, 1937, and thereafter settled the holding with the decree-holders. The decree-holders obtained possession of the land but was subsequently dispossessed by the judgment-debtors. Thereafter the decree-holders filed a title suit, namely, Title Suit No. 178 of 1944, for recovery of possession of the land. The suit was decreed on the 11th April, 1946, and the decree of the trial court was affirmed on appeal by the appellate court on the 16th November, 1946. Meanwhile the defendants 2nd party, who claimed to be the mortgagees of a portion of the holding, made an application under Order 21, Rule 90, Code of Civil Procedure, for setting aside the sale held on the 8th April, 1937. The application was allowed ex parte and the sale was set aside on the 12th April, 1947. The decree-holders then instituted Title Suit No. 110 of 1947, alleging that they were not bound by the ex parte order passed in the execution case and the order of the executing court setting aside the sale was erroneous. The suit was decreed on the 9th August, 1948 but the judgment of the trial court was reversed in first appeal. When the matter came up before the High Court in second appeal, the decree of the trial court was restored and it was held that the decree-holders being a necessary party in the execution case were not bound by the order of the executing court passed in their absence. The judgment of the High Court is dated the 4th January, 1957. The present execution case was filed by the decree-holders of the 14th February, 1958, for the execution of the decree obtained by them in Title Suit No. 178 of 1944.

(3.) On behalf of the appellants it was submitted by learned Counsel that the execution case is not barred by Article 182 of the Limitation Act, because the appellants are entitled to exclude the period from the 12th April, 1947 to the 4th January, 1957, for during that period the appellants could not effectively execute the decree for possession as against the judgment-debtors. In our opinion there is no substance in this argument. It is manifest, in the circumstances of this case, that the starting point of limitation is the 16th November, 1946, when the decree of the trial court in Title Suit No. 178 of 1344 was affirmed by the appellate court. If limitation started to run from that date under Article 182 of the Limitation Act, then there can be no suspension of time unless the deduction is recognized and provided for by the Limitation Act. It is conceded on behalf of the appellants in the present case that the deduction is not provided for under Section 15 or Section 16 of the Indian Limitation Act. In our opinion, therefore, it is not permissible in law for the appellants to deduct the period from the 12th April, 1947 to the 4th January, 1957, for computing the period of limitation applicable under Article 182 of tha Indian Limitation Act. The view that we have expressed is supported by the decision of the Madras High Court in Sornam Pillai v. Thiruvazhiperumal Pillai, AIR 1926 Mad 857 at p. 859. It was held by Phillips and Madhavan Nair, JJ. in that case, that in computing the period of limitation under Article 180, time during which an application under Arcier 21, Rule 90, for setting aside the sale is pending will be deducted as the sale will be deemed to be absolute! when such application is rejected, but the time during which a suit to set aside the sale, on rejection of an application under Order 21, Rule 90, is pending cannot be deducted, because there is no provision of law for excluding in favour of the auction-purchaser the period of the pendency of a suit filed by the. judgment-debtor to set aside a court sale. The same principle is expressed by the Judicial Committee in Huro Pershad Roy v. Gopa! Das Dutt, ILR 9 Cal 255. It was held by the Judicial Committee in that casa that after the expiration of the period prescribed by Section 29 of the Bengal Act Vlll of 1869, a plaintiff suing for arrears of rent cannot insist on the pendency of another suit, brought by him for possession of the land, as preventing limitation from running, where there has been no time during which such rent could not have been recovered if he had acted on his right of suing for it. The same view has been expressed by the Judicial Committee in Soni Ram v. Kanhaiya Lal, ILR 35 All 227. It was held in that case that where in a suit for redemption limitation had once begun to run it could not be suspended during the period the fusion of the interests of the mortgagor and mortgagee took place. The same view has been reiterated by the Lahore High Court in Hukam Chand v. Shahab Din, ILR 4 Lah 90 : (AIR 1924 Lah 40, in which U. D. mortgaged the land in dispute to L. D. in 1894 for Rs. 820/-, out of which Rs. 320/- were paid to the mortgagor and Rs. 500 were left with the mortgagee to be paid to a previous mortgagee, M. L. The mortgage in favour of M. L. was dated the 2nd October, 1890, and was a simple mort- gage without possassion. There was a clause in this mortgage entitling the mortgagee to claim possession in the event of a default of any of the instalments fixed in the deed. L. D. did not pay Rs. 500/- to M. L. In 1903 M. L. sued U. D. and B. R. son of L. D., for possession, and succeeded in getting possession of the land in suit. Me remained in possession till 1917, when the heirs of U. D. redeemed the property and took possession. Thereupon B. R. instituted the present suit for possession as mortgagee on payment of Rs. 500/-. !t was held by the Lahore High Court that the suit was barred by limitation under Article 135 of the Indian Limitation Act. U. D., the mortgagor, was in possession of the property at the data of the mortgage, and L. D. could. at once have sued for possession. As under the mortgage deed the plaintiff was entitled to immediate possession, and the time had begun to run from the date of the mortgage, no subsequent disability or inability to sue could stop it, vide Section 9 of the Indian Limitation Act. It was held further that there can be no saving of limitation apart from the provisions of the Limitation Act, and therefore the plaintiff was not entitled to a deduction of the period during which M. L., the previous mortgagee, had remained in possession. In view of the principle laid down by these authorities we are of opinion that the execution case filed by tha appellants on the 14th February, 1958, is barred, by limitation, and the period from the 12th April, 1947 to the 4th January, 1957, cannot be excluded in computing the period of limitation under Article 182 of the Limitation Act. On behalf of the appellants reference was made to the decision of the Allahabad High Court in Chanda Devi v. Natthu Singh, AIR 1944 All 38, but the principle of that case has no application to the present case where the material facts are different.