Adjudication of starting point of limitation period.

This appeal is preferred against the decree and judgment of the learned District Judge of South Arcot dismissing the appellant’s suit for specific performance of an agreement, dated 3rd August, 1946 for sale of immovable properties, or in the alternative for recovery of damages and the price advanced by the appellant under the agreement.

The admitted facts are the following. The properties in suit belonged to respondents 1 and 2 who are members of an unidivided Hindu family. The first respondent executed a mortgage over these properties in 1923 in favour of one Manjini Gounder for Rs. 2,500. The mortgagee obtained a decree on this mortgage in O.S. No. 20 of 1937 on the file of the District Court, South Arcot, for sale of the mortgaged properties and assigned his decree to one Muthuvenkatapathi Reddi who brought the properties to sale and the properties were sold to several auction purchasers. Thereupon the second respondent filed M.P. No. 302 of 1944 under Order 21, rule 90, Civil Procedure Code, to set aside the sale. That was dismissed on 10th July, 1945 and the sale was confirmed on 12th July, 1945. The matter was brought up to High Court in C.M.A. No. 447 of 1945, and by the order of this Court dated 28th March, 1946 the appeal was allowed and the petition to set aisde the sale was remanded to the District Court for disposal.

It is said that the appellant had paid Rs.1,000 to the respondents towards the expenses of these proceedings and when the application to set aside the sale was remanded for disposal, another application under Order 34, rule 5, Civil Procedure Code, was made for depositing Rs. 5,856-8-3 into Court. The sum represents the decree amount for which the properties had been ordered to be sold. The appellant claimed that he had thus advanced Rs. 6,856-8-3 to the respondents under the agreement that the respondents would sell the suit properties to him for the total sum of Rs. 6,856-8-3 due to him. This agreement was entered into on 3rd August, 1946. A period of three months was fixed in the agreement as period within which the sale deed should be executed. The District Court on remand dismissed the application to set aside the sale. This happened on 25th February, 1947. Thereupon an appeal was again preferred to this Court, and it is said, that the parties mutually agreed to extend the time for execution of the sale deed pending disposal of the appeal in the High Court. The respondents were successful in the High Court and ultimately the sale was set aside on 8th January, 1953. Thereupon the appellant sent notices to the respondents on 9th December, 1952 and again on 6th December, 1953 calling upon them to execute the sale deed, but the respondents refused to comply with the demand.

Though the agreement in question recited that the appellant was given possession of the suit properties even on 3rd August, 1946 the respondents, it is urged, failed to surrender possession to the appellant. The appellant therefore claimed profits at the rate of Rs.1000 per year for three years prior to suit in the shape of damages. In addition he also claimed repayment of Rs.6,856-8-3 with interest in case the Court rules that the appellant was not entitled to specific performance of the contract.

The respondents denied the truth of the agreement dated 3rd August, 1946 and also the allegation that any money was advanced by the appellant to them either for expenses of the litigation or for depositing the sum of Rs. 5,856-8-3 in the District Court. They also denied the agreement to extend the time for performance of the contract, and further they raised the plea of limitation.

The learned Judge in the Court below found the agreement to be true and accepted the appellants contention that a sum of Rs. 1,000 was advanced by him for expenses of the litigation and Rs. 5,856-8-3 for deposit into Court. But, the learned Judge disbelieved the version of the appellant as regards the agreement to extend the time for performa