Horwill, J - (1.)The sixth defendant, who is the mother of defendants 4 and 5, mortgaged the suit property; and upon that mortgage a suit was brought and the property sold in Court auction and purchased by the decree-holder, who is the plaintiff, on 22nd November, 1937. A suit was thereupon filed by defendants I to 4 impugning the mortgage and asserting that the sixth defendant had no authority to mortgage the property. Their suit was dismissed in the trial Court; but they carried the matter in appeal to the High Court and obtained an injunction order on 7 November, 1938, restraining the plaintiff from interfering with their possession. That injunction continued in force during the pendency of the appeal, which was ultimately dismissed. The plaintiff took delivery of the property on 12 November, 1941. He then attempted during the course of the execution to obtain mesne profits by way of restitution; but his application was dismissed, it being held that his remedy lay only by way of a separate suit. The plaintiff thereupon filed the present suit for mesne profits from 22nd November, 1937, the date when he purchased the property, to 12 November, 1941. The trial Court held that the plaintiff was entitled to mesne profits only for a period of three years prior to suit, and therefore gave him a decree for the period from 1 December, 1940, (three years prior to the date of the filing of the suit) to 12 November, 1941, the date of delivery. Both parties preferred appeals. Many points of law were raised; and the plaintiff gave many reasons why he should have been given mesne profits for a longer period. He claimed that Art. 120 of the Limitation Act applied and not Art. 109. He pleaded that time could also be enlarged under Secs.14 and 15 of the Limitation Act, and finally asked the Court to admit as additional evidence the counter filed by defendants 1 to 4 in the execution proceedings. The Court admitted this additional evidence and allowed an amendment of the plaint, and while rejecting arguments with regard to the applicability of Section 14 and Art. 120 of the Limitation Act to the facts of the case, held that the plaintiff was entitled to invoke Section 15 of the Limitation Act and that the counter marked as Ex. P-12 amounted to an acknowledgment; and so gave the plaintiff a decree for the period from 7 November, 1938, the date of the order of injunction passed by this Court, up to the date of delivery.
(2.)It is argued in this Court that the lower appellate Court was wrong in applying Sec. 15 of the Limitation Act and in permitting Ex, P-12 to be marked, and that even if Ex. P-12 was properly marked, the recitals therein did not amount to an acknowledgment.
(3.)It is clear that Section 15 of the Limitation Act does not in so many words apply to the facts of the case; for the institution of the present suit was certainly not stayed by the injunction order in question. That order was merely made to avoid any inconvenience that might arise by permitting the execution of the decree to proceed while the appeal in this Court was still pending. The lower Court relied on an observation of Sadasiva Aiyar, J., in Muthukorakkai Chetty V/s. Madar Ammal (1919) 38 M.L.J. 1 : I.L.R. 43 Mad. 185 (F.B.), which was approved in D. Narain Roy V/s. Jogesh Chandra De , in these words: Whenever proceedings are being conducted between the parties bonafide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities. In Muthukorakkai Chetty V/s. Madar Ammal (1919) 38 M.L.J. 1 : I.L.R. 43 Mad. 185 (F.B.), this question did not directly arise. The point that had to be considered was one of limitation in a proceeding to set aside a sale on the ground of fraud, instituted after the confirmation of the sale had been ordered. The majority of the learned Judges were of opinion that although an order for confirmation of the sale was passed; yet on account of the pendency of the proceedings to set aside the sale, the confirmation did not really take place until those proceedings had terminated. Sadasiva Aiyar, J., was however of opinion that the order of confirmation was in a state of suspension pending the other proceedings. In other words, he was of opinion that on some equitable grounds not strictly covered by Section 15 of the Limitation Act, the period during which a bona fide litigation was pending could be excluded. Dealing with the argument that a suit could, nevertheless, have been filed, he said that the filing of such a suit was futile and unnecessary. The argument that a suit was futile and unnecessary was considered by another Full Bench of this Court in Sundaramma V/s. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490 (F.B.) in which the dictum of Sadasiva Aiyar, J., did not meet with approval. Jackson, J., with whom Sundaram Chetti, J., concurred, said: If the application is one which must be made in order to save the bar of limitation it is neither futile nor unnecessary.