Udit Singh vs Padarath Singh and Another

Straight, J.—The article of the Limitation Law admittedly applicable to this case is Article 120, and the only question is, from what point are the six years to be held to commence. Now, although the final order for the foreclosure was made in December 1875, Padarath Singh, the vendee, was compelled to bring a suit for declaration of his title and possession, and it was not until the 28th April 1881, that he obtained a decree, under which possession was subsequently given him on the 30th November 1883. For the reasons given by me in Rasik Lal v. Gajraj Singh ILR All. 414 I think that the pre-emptor is entitled to contend that his full right to impeach the sale had not accrued until the validity of the sale, as between the vendor and vendee, had been established by a Court, for non constat, but that it might have been found invalid, in which case his cause of action would have disappeared. It is not necessary for me to discuss here whether I am prepared to adopt the view expressed by my brothers Oldfield and Brodhurst in the case of Prag Chaubey v. Bhajan Chaudhri ILR All. 291; as taking the decree of the 28th April 1881, as the starting-point, the present suit, which was started on the 27th March 1884, is abundantly within time. In my opinion this appeal must be decreed, and the decrees of the lower Courts being reversed on the preliminary point on which they threw out the suit, the case will be remanded to the Munsif, u/s 562 of the Civil Procedure Code, for disposal on the merits. The costs hitherto incurred will be costs in the cause.

Tyrrell, J.

I agree in the views stated and the order made by my learned brother.