Judgement

Consolidated Appeal (No. 87 of 1932) from two decrees of the High Court (August 19, 1930) reversing two orders of the first Subordinate Judge of Tippera at Comilla (February 28, 1929).

The appellants purchased, with the leave of the Court, immovable properties at two auction sales in execution of two mortgage decrees in their favour. Two sets of objections to the sale in each case were filed under Order xxi., r. 90, one set by respondents Nos. 1 to 0 and one set by respondents Nos. 7 to 19. The objections were heard together by the Subordinate Judge and were dismissed by orders made on April 15 and 22, 1924, respectively; he confirmed both sales under Order xxi., r. 92. Appeals to the High Court by the objectors were dismissed on March 17, 1927. On May 19 and June 6, 1928, the Subordinate Judge granted the appellants as purchasers sale certificates under Order xxi., r. 94.

On September 10, 1928, the appellants applied to the Subordinate Judge for an order for delivery of possession in respect of each purchase.

The Subordinate Judge made an order in each case, holding that the applications were not barred by limitation, as the period of three years allowed by the Indian Limitation Act, 1908, Sch. I., art. 180, ran from March 17, 1927, when the High Court had dismissed the objectors appeals.

Upon appeals by respondents Nos. 1 to 3 to the High Court the decisions were reversed and the applications dismissed. The learned judges Mukerji and Mitter JJ., following the decision of the Court in Neckbar v. Prakash Chandra Nag Chaudhuri (( 1928) I. L. R. 56 C. 608.), held that the applications were barred, as they had not been made within three years of the confirmation of the sales by the Subordinate Judge. The appeal is reported at 56 Cal. L. J. 574.

1934. April 19, 20. De Gruyther K.C. and Parikh for the appellants. The sale did not become absolute within the meaning of art. 180 of the Limitation Act until the High Court finally disposed of the judgment debtors application to set it aside; consequently the appellants applications were not barred. The view that the time ran from the date of the order of the Subordinate Judge would result in difficulty if the High Court allowed a judgment debtors appeal and the decision was reversed by the Privy Council. The facts of the present case are the same as those in Chhogan Lal Bagri v. Behari Lal Saha Roy (( 1932) 56 Cal. L. J. 520.), in which it was held by the High Court that the sale became absolute only upon the app3al to the High Court being dismissed. In that case the High Court purported to distinguish Neckbar v. Prakash Chandra Nag Chaudhuri (1), but it is submitted that the cases conflict and that the last named case was wrongly decided. The judgments of the majority of the Madras High Court in Muthu Korakkai Chetty v. Madar Ammal (( 1919) I. L. R. 43 M. 185.), support the appellants. In Baijnath Sahai v. Ramput Singh (( 1896) L. R. 23 I. A. 45.) art. 12 of the Limitation Act, 1877, and s. 311 of the Code of 1882 applied, and there was an intermediate period when there was no confirmed sale, but the judgment of the Board supports the view that In the present case there was no final confirmation of the sale until dismissal of the judgment debtors appeal to the High Court. By s. 107, sub-s. 2, of the Code the High Court had all the powers of the Subordinate Judge ; the dismissal of the appeal operated to confirm the sale without formal order to that effect. Sect. 16 of the Indian Limitation Act does not affect the present question. It is further submitted that no appeal to the High Court lay from the order of the Subordinate Judge for recovery of possession. That contention could not be raised in the High Court having regard to the decision of the Full Court in Kailash Chandra Tarapdar v. Gopal Chandra Poddar. (( 1926) I. L. R. 53

C. 781.) That decision was based upon the view that the application was one to which s. 47 of the Code applied, but the High Courts other than those