Decided on February 10,1900

LALMAN DAS Appellant


Blair, J - (1.) IT seems to me that this appeal must succeed. At an auction sale held in execution of a mortgage decree a 16-biswansis share was sold instead of a 15- biswansis share, which was all that under the decree should have been brought to sale. The purchaser is a stranger, and for some 11 years has been in undisturbed possession of the share. The Court below in a somewhat vague manner has apparently treated this proceeding, not as a suit but as an application under Section 244 of the Civil P. C., and following therein a decision of this Court in Jhamman Lal V/s. Kewal Ram Weekly Notes 1899, p. 219, in which a Bench of this Court approved of the ruling in the case Biru Mahata V/s. Shyama Churn Khawas (1895) I.L.R. 22 Cal. 483, decreed the claim of the plaintiffs. Mr. Gokul Prasad argues for the appellant that this proceeding having been treated by the Court below as a proceeding under Section 244, the application of the plaintiff is barred by the operation of Art. 178 of Schedule ii of the Indian Limitation Act. If that article is applicable, it is clear that the three years limitation has long expired. Mr. Mujtaba for the respondents has suggested that no article of limitation is applicable to such an application as this. The case which he has cited to me is altogether of a different kind, and I see no reason to doubt the propriety of the application of Art. 178. For this reason I allow the appeal, set aside the decrees of the Courts below, and dismiss the plaintiff's suit with costs.;

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