N.R. Chatterjea, J.
1. This appeal arises out of a suit for recovery of possession of the lands in dispute on the ground that they formed part of a tenure which was granted in; 1837 to one Hossein-ud-din Choudhuri, the predecessor-in-interest of the defendants.
2. It is alleged by the plaintiffs that a suit, for rent in respect of the tenure was brought against the heirs of Hossein-ud-din, and in execution of that decree the tenure was sold and purchased by the plaintiffs on the 12th July 1902. The sale was confirmed 12th the "13th August 1902. The plaintiffs obtained possesion on the 12th January 1934. The plaint is say that they continued in possession and were dispossessed in 1914. They then brought a suit in the Munsif's Court on the nth July 1914. That Court held that the suit was not cognisable by that Court, and accordingly returned the plaint. The plaint thereupon' was filed in the Court of the Subordinate Judge against the original defendants on the 15th June 1915. The defendants Nos. 7 to 20 were added as party defendants on the 27th March 1916.
3. The defence was that there was no tenancy created, in 1837 in favour of the defendant, that there was a salfe of a portion of. the proprietary interest, but that the transferee was to pay his share of the Government revenue payable with respect to that portion through the transferor,1 so long as mutation did not take place, and that that being. so, the Munsifs, Court which held the sale in execution of the rent-decree had no Jurisdiction to pass the decree or hold the sale, as the suit was one cognisable by the Small Cause Court.
4. The Court of first instance held that the suit was barred by limitation and dismissed the suit. On appeal the learned District Judge decided the question in favour of the plaintiff and gave him a decree.
5. The defendants Nos. 7 to 20 have appealed to this Court. The main question in the case is whether the suit is barred by limitation.
6. As stated above, the sale was confirmed on the 13th August 1902 and symbolical possession was delivered to the plaintiffs on the. 12th January 1904. The judgment-debtors, however, continued in possession and the plaintiffs did not obtain actual possession. The defendants Nos. 7 to 20 were added as parties on the 27th March 1916. This was more than 12 years from the date of the confirmation of the sale as well as from the date on which symbolical possession was delivered to the plaintiffs. The learned District Judge was of opinion that the Article applicable to the suit was 137 or 138, but that Section 16 of the Limitation Act applied to the case under which the plaintiffs were entitled to deduct the time during which an application for setting aside the sale was pending in Court. That application was made on the 21st June 1905. It was rejected on the 8th April 1906.
7. Section 16 lays down that in computing the period of limitation prescribed for a suit for possession by a purchaserat a sale -in execution of a decree, the time during. which The judgment-debtor has bean, prose-- eating proceedings to set aside the sale shall be excluded The only suit for possession by a purchaser at a sale in execution of decree for which a period of limitation is prescribed is a suit under Article 137 and 138. Article 137 cannot apply to the present case, as the judgment debtor was in possession at the date of the sale; and if any of these Articles is applicable, it must be Article 138. Article 138 provides for a suit by a purchaser of land at a sale; in execution of, a decree for possession of the purchased land when the judgment-debtor was in possession at the date of the sale. The period of limitation (12 years) begins to run from the date when the sale becomes absolute. Now, if the sale was made absolute on the 13th August 1902 on which date it was confirmed the suit would no doubt Be barred, even if the plaintiff was to get deduction of the period during which the application for setting aside the sale was pending, namely, from 21st June 1905 to 8th April 1906.
8. It is contended, however, on behalf of the respondent that the sale did not become absolute until the 8th April 1906 when the application under Sections 204 and 311 to Set aside the sale was disposed of, and if that is the proper view of the matter, there is no doubt that the suit would be in time.
9. The question is, whether the sale was made absolute on the 8th April 1906 or on the 13th August 1902.
10. Now, Section 314 of Act XIV of 1882 provided that no sale of immoveable property should become absolute until it had been confirmed by the Court and Section 316 laid down that when the sale had become absolute in the manner aforesaid the Co art should grant a certificate and the property should vest in the purchaser from the date of the certificate. The sale, therefore, became absolute on confirmation of the sale under Section 312 of the Code, and Section 313 shows that the sale was to be confirmed if ho application were made under Section 311 or if any such application were made and disallowed. It appears, therefore, that the confirmation of the sale followed disallowance of any application that may have been made under Section 311, Civil Procedure Code, and evidently that was to be made before the certificate of sale was issued: and in such cases, Section 16 of the limitation Act would certainly be applicable. Here, the application was made several years afterwards. The sale was confirmed on the 13th August 1902; the application to set aside, the sale was not made until the 21st June 1965. The confirmation of sale cannot be kept in abeyance When no proceedings are taken to set aside the sale before the confirmation in order to enable the judgment-debtor to take such proceedings years afterward, as in the present case, We are unable, therefore, to hold that the sale became absolute on the 8th April 1906 when the application was rejected. We are of opinion that the sale became absolute on the 13th of August 1902.
11. We think, therefore, that even if Article 138 is applicable to the case, the suit will be barred even if the plaintiff is allowed deduction for the period during which the application to set aside the sale was pending. We do not think, however, that Article 138 is the proper Article applicable to the case. The plaintiff obtained delivery of symbolical possession on the 12th January 1904. Such symbolical possession was as effective as actual possession against the judgment-debtors; and if the judgment-debtors continued in possession, their possession was adverse against the plaintiffs from that very day. The plaintiffs, therefore, had a fresh cause of action for instituting the suit for possession against the judgment-debtor; and such a suit would not be one governed by Article 138, which evidently refers to a case where the purchaser has not obtained delivery of possession.
12. The cases on the point are discussed in the case of Gopal v. Krishna Rao 25 B. 275 at p. 280 : 2 Bom. L.R. 1021 where it is pointed out that, "Article 137 applies to an auction-pruchaser of the rights of a; person not in possession, while Article 138 applies "when the auction-purchase is made of the right of a judgment-debtor who is in possession at the date of the sale. None of these Articles, contemplate the case of an auction-purchaser or his assign who has -obtained formal possession, and is disturbed by the judgment-debtor or his heirs who continue in actual possession, as was the case in the present dispute. In such a case all the Courts agree in holding that Article 138 does not apply, but Article 144 applies."
13. If Article 144 applies, the plaintiff is toot entitled to any deduction of time under Section 16 of the limitation Act. But the learned Pleader for the respondent contends that he is entitled to deduction of the time during which the proceeding for setting aside the sale was pending under the general principles of equity.
14. We do not think, however, that he is so entitled. He refers to the cases of Lakhan Chunder Sen v. Madhusudan Sen 35 C. 209 at p. 217 : C.L.J. 59 : 12 C.W.N. 326 : 3 M.L.T. 90 and Hemendra Mohan Khashnabis v. Noresh Chandra Bhatta-charjee 62 Ind. Cas. 418 : 25 C.W.N. 376 : 33 C.L.J. 260. In the first case, there was a decree actually in favour of the pro jorma defendants and, so long as that decree was not set aside, a fresh suit, for the same relief could not be brought by them.
15. In the second case, the third mortgagee was prevented by an order of the Court from applying to make the decree absolute until the second mortgagee had been redeemed.
16. In the case of Ranee Sumo Moyee v. Shooshee Mokhee Burmonia 12 M.I.A. 244 at p. 254 : 11 W.R. 5 (P.C.) : 2 B.L.R. 10 (P.C.) : 2 Suth. P.C.J. 173 : 2 Sar. P.C.J. 424 : 20 E.R. 331 : 1 Ind. Dec. (N.S.) 489 it was pointed cut by the Judicial Committee that, until the sale had been finally set aside, she was in the position of a person whose claim has been satisfied, and that her suit might have been successfully met by a plea to that effect.
17. In the present case the principle of those cases cannot apply, because the sale had already been confirmed, and had become absolute; a certificate of bale had been granted to the plaintiffs and they had obtained delivery of symbolical possession. In these circumstances, when the defendants-judgment-debtors withheld possession, the plaintiffs were quite competent to maintain the suit against the judgment-debtor, and the mere fact that the judgment-debtors made an in successful application several years afterwards could not invalidate the confirmation of sale which had taken place, nor entitle the decree-holders to deduct the period during which the proceedings were pending.
18. We think therefore, that the suit is barred by limitation. That being so, it is unnecessary to consider whether the transfer in favour of Hossein-ud-din by the plaintiff's predecessor was a lease or a transfer of a portion of the proprietary interest, and, if it was the latter, whether the Munsif had jurisdiction to pass a decree for rent or hold the sale in execution thereof.
19. The result is, that the decree of the lower Appellate Court is set aside and that of the Court of first instance restored with costs here and of the Court below.