Full Judgment Text
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CASE NO.:
Appeal (civil) 2462 of 1991
PETITIONER:
RAMALINGAM CHETTIAR
Vs.
RESPONDENT:
P.K.PATTABIRAMAN & ANOTHER
DATE OF JUDGMENT: 21/02/2001
BENCH:
V.N. Khare & S.N. Variava
JUDGMENT:
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V.N. KHARE, J.:
One Subramania Pillai took loan. It appears that he
committed default in repaying the loan. With the result,
the State of Tamil Nadu took proceedings for recovery of
dues under Section 5 of the Tamil Nadu Revenue Recovery Act
(hereinafter referred to as the Act). In the said
proceedings, the land measuring 2 acres 47 cents was put to
sale by public auction treating the land as if it was owned
by Subramania Pillai. The appellant herein purchased the
said property at the said auction held on 21.11.1974. On
2.12.1974, the plaintiff-respondent filed an application
under Section 38 of the Act praying therein for cancellation
of auction sale in favour of the appellant. His case was
that Subramania Pillai was not the owner of the said
property and in fact it belonged to him. The respondent, on
1.4.1975, filed further objections. It appears that on the
basis of the two objections filed by the respondent, the
Collector ordered for an enquiry. After the matter was
enquired into, the Collector on 11.1.1977, rejected the
application of the respondent and confirmed the sale in
favour of the appellant herein. On 4.2.1977, the sale
certificate was issued in favour of the appellant and the
possession of the land was delivered to him on 11.2.1977.
On 12.2.1977, the respondent filed a suit for declaration of
his title to the land, delivery of possession of said land
to him and for setting aside the auction sale in favour of
the appellant. Initially, the respondent, in the said suit,
did not implead the State of Tamil Nadu as one of the
defendants. Subsequently, the defendant in the suit, by a
separate application i.e. I.A. No. 164/1979 prayed for
impleadment of State of Tamil Nadu as defendant No. 2. The
said application was allowed by the trial court on 11.10.
1979 directing for impleadment of the State of Tamil Nadu.
The trial court framed several issues. One of the issues
was whether the suit brought by the plaintiff was within the
period of limitation. The trial court after considering
other issues held that the suit was barred by limitation as
the same was not brought within six months of the date when
the cause of action to the plaintiff arose. the Suit was
thus dismissed. The plaintiff thereafter preferred an
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appeal before the first appellate court. The first
appellate court was of the view that since the plaintiff was
stranger to the proceedings, the period of limitation
provided under Section 59 of the Act is not applicable. In
view of the matter, the appeal was allowed and the suit
filed by the respondent was decreed , as prayed for. The
appellant thereafter filed second appeal before the High
Court but the same was dismissed. It is against the said
judgment of the High Court, the appellant is in appeal
before us.
Learned counsel appearing for the appellant urged that
the suit brought by the plaintiffs-respondents was barred by
limitation and, therefore, it ought to have been dismissed
on that ground alone. We find substance in the arguments.
Section 38 of the Act provides thus:
Section 38 (1) : At any time within thirty days from
the date of the sale of immovable property, application may
be made to the Collector to set aside the sale on the ground
of some material irregularity, or mistake or fraud, in
publishing or conducting it; but, except as otherwise is
hereinafter provided, no sale shall be set aside on the
ground of any such irregularity or mistake unless the
applicant proves to the satisfaction of the Collector that
he has sustained substantial injury by reason thereof.
(2) xxx xxx xxx xxx
(3) On the expiration of thirty days from the date of
the sale, if no such application is made or if such
application has been made and rejected, the Collector shall
make an order confirming the sale; provided that, if he
shall have reason to think that the sale ought to be set
aside notwithstanding that no such application has been made
or on grounds other than those alleged in any application
which has been made and rejected, he may, after recording
his reasons in writing, set aside the sale.
(4) xxx xxx xxx xxx
(5) xxx xxx xxx xxx xxxxx.
A perusal of the aforesaid provisions shows that any
person aggrieved against an auction sale of property is
entitled to file an application before the Collector within
expiry of thirty days from the date of sale of immovable
property on the ground of some material irregularity or
mistake or fraud in publishing and conducting the sale. It
is not disputed that the plaintiffs did file the said
application for setting aside the auction sale within thirty
days and was rejected by the Collector. The question
therefore arises is, what is the period of limitation for
bringing a suit in the civil court for cancellation of an
auction sale.
Section 59 of the Act provides thus:
Nothing contained in this Act shall be held to prevent
parties deeming themselves aggrieved by any proceedings
under this Act, except as hereinbefore provided, from
applying to the Civil Courts for redress; provided that
Civil Courts shall not take cognizance of any suit
instituted by such parties for any such cause of action,
unless such suit shall be instituted within six months from
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the time at which the cause of action arose."
The said provision shows that parties aggrieved by any
proceedings under the Act can bring a suit in the civil
court within six months from the time at which the cause of
action arose. It cannot be disputed that the plaintiff was
aggrieved by the proceedings under the Act and was thus
entitled to institute a suit in the civil court It is also
not disputed that in the present case, the cause of action
arose when the application of the respondent was rejected
and the sale was confirmed that is on 11.1.1977. It is also
true that the suit was laid in the civil court within six
months from the time at which the cause of action arose.
But in the said suit, State of Tamil Nadu was not impleaded
as defendant and in the absence of State of Tamil Nadu, the
suit instituted by the plaintiff was incompetent. It was
only when I.A. No. 164/1979, filed by the defendant for
impleadment of the State of Tamil Nadu was allowed by the
trial court, the suit laid by the plaintiff became
competent. It is also not disputed that I.A. No. 164/1979
for impleadment of the State was allowed on 11.10.1979.
Section 21 of the Limitation Act provides that where after
the institution of a suit, if a new plaintiff or defendant
is substituted or added, the suit shall, as regards him, be
deemed to have been instituted when he was so made a party.
In view of Section 21 of the Limitation Act, so far as the
State of Tamil Nadu was concerned, suit filed by respondent
has to be treated as instituted when the application for
impleadment of State of Tamil Nadu was allowed, i.e. on
11.10.1979 and by that time the suit stood barred by time.
Learned counsel for the respondent referred the proviso
to Section 21 of the Limitation Act and on the strength
thereof argued that even if the application for impleadment
of State of Tamil Nadu was allowed on 11.6.1979 the said
order has to be understood as if impleadment of defendant
no.2 was with effect from the date of filing the suit.
There is no substance in the argument. Section 21 of the
Limitation Act contemplates two situations one under the
substantive provision which provides that where after filing
of a suit, a new plaintiff or defendant is substituted or
added, the suit shall, as regards him, be deemed to have
been brought on the day when he was added or substituted as
a party in the suit. The second situation contemplated
under the proviso to the substantive provision is where the
court is satisfied that a new plaintiff or defendant was
omitted to be added or substituted due to a mistake in good
faith, the court may direct that the suit, as regards the
newly added or substituted party, shall be deemed to have
been instituted on any earlier date. Thus, under the
proviso, if the court is satisfied, it can direct that the
suit as regards newly added or substituted plaintiff or
defendant shall be deemed to have been instituted on an
earlier date. In such a case, the court after substituting
or adding a party in the suit is required to pass a
separate/further order that the suit as regards the newly
added defendant or plaintiff shall be deemed to have been
instituted with effect from the date the suit was laid.
Merely adding or substituting a plaintiff or defendant by
the court is not enough. In the absence of any order that
the impleadment of newly added or substituted party shall
take effect from the date of institution of a suit, the
period of limitation so far as the newly added or
substituted shall run from the date of their impleadment in
the suit. We have looked into the records but do not find
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any order having passed under the proviso to Section 21 of
the Limitation Act that the impleadment of the State of
Tamil Nadu would take effect from the date of institution of
the suit. In the absence of such an order by the trial
court, the suit filed by the respondent was barred by
limitation as contemplated under Section 59 of the Act.
For the aforesaid reasons, we set aside the judgment
under challenge and restore the decree of the trial court.
The appeal is allowed. There shall be no order as to costs.@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
V.N. Khare
S.N. Variava
21 February, 2001