JUDGMENT [ENTITY], J.
1. This is a decree-holder's application under [SECTION] of the [ACT], hereinafter called the Code, from the order dated 14-5-64 passed in execution [CASE NUMBER] by the learned Munsif of Aurangabad holding that the application for delivery of possession is barred by time.
2. The properties over which delivery of possession was prayed for by filing an application under [SECTION] of the Code were sold on the 22nd of May, 1961 in court auction and were purchased by the decree-holders. On 3rd of June, 1961. [ENTITY], opposite party No. 4, one of the judgment-debtors, filed [CASE NUMBER] under [SECTION] of the Code for setting aside the sale. [ENTITY], opposite party No. 3, another judgment debtor, filed another miscellaneous case No. 47 of 1[SECTION]2 on the 28th February. 1962 under the same provision of law, i.e., [SECTION] of the Code, taking the point that the properties were not liable to be sold in execution of the decree in view of the provisions of law contained in [SECTION] of the [ACT]; this point had not been taken by opposite party No. 4 in [CASE NUMBER]. The latter case was dismissed for default on the 24th of April, 1962 but [CASE NUMBER] proceeded to trial.
As it appears, the only point which the judgment-debtors wanted to press was the one taken in this case. This miscellaneous case was also dismissed on the 30th of April, 1962 by the execution court taking the view that the point was barred on the principle of res judicata After dismissing this case the execution court confirmed the sale on the same date, i.e. on 30-4-62. [CASE NUMBER] was preferred by opposite party No. 3 in the lower appellate court. This appeal was dismissed on the 29th of June. 1963 by the Subordinate Judge, 1st Court, at Gaya, on two grounds (i) that the point was barred by res judicata as held by the execution court and (ii) that the appeal was defective as one of the heirs of the deceased, decree-holder had not been made party to the appeal. The application under [SECTION] of the Code for delivery of possession was filed by the decree-holders on the 4th of April. 1964.
This has been held to be barred by limitation by the learned Subordinate Judge on the ground that the limitation started to run on the 30th of April, 1962, and reading the provisions of [SECTION] of the [ACT] of 1[SECTION]8 with those of [SECTION] of the [ACT] and [SECTION] of the new Act, it was barred by limitation. It may be stated here that the fact that there was a miscellaneous appeal filed, as stated above, does not seem to have been brought to the notice of the execution court as it does not find mention or discussed in its judgment This fact, however, was stated in the civil revision application. It was not controverted by the other side, and a certified copy of the judgment of the Subordinate Judge, 1st Court at Gaya, dismissing [CASE NUMBER] on the 29th of June, 1963 has been filed before, and shown to, us. Since this was a part of the record of the execution case, we thought it proper to take into consideration this judgment, and the point which arises will be decided with reference to the fact that the said miscellaneous appeal arising under the circumstances narrated above was dismissed on 29th of June, 1963.
3. Under [SECTION] of the [ACT] of 1[SECTION]8, an application by a purchaser of immovable property at a sale in the execution of a decree for delivery of possession could be made within 3 years from the date when the sale became absolute. The period for such an application under [SECTION] of the new [ACT] has been made shorter, and it is one year only. But the starting point in the third column is the same, namely, "when the sale becomes absolute".
4. In [PRECEDENT] it was held "Upon consideration of the Sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words 'when the sale becomes absolute' in [SECTION], [ACT], regard must be had not only to the provisions of [SECTION], [SECTION] of the schedule to the [ACT] but also to the other material Sections and orders of the Code, including those which relate to appeals from orders made under [SECTION], [SECTION]. The result, is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of [SECTION], [ACT], until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application."
In view of the authoritative pronouncement of the Privy Council, there would have been no difficulty in taking the view that the sale became absolute in the present case, for the purposes of the starting point of limitation, on the 29th of June, 1963 although it was confirmed by the execution court on the 30th of April, 1962 and in terms of [SECTION] of the Code it became absolute then Mr. [ENTITY] endeavoured to distinguish the decision of the Privy Council on the ground that in the case before the Board the application for setting aside sale was made under [SECTION] of the Code while in the instant case it was under [SECTION] of the Code. In my opinion, it makes no difference on that account. [SECTION] of the Code, as it stands under the [ACT] Amendment, reads as follows:
"Where no application is made under [SECTION], [SECTION] or [SECTION], or where such application is made and disallowed, the Court shall, subject to the provisions of [SECTION], make an order confirming the sale, and thereupon the sale shall become absolute"
Within the ambit of [SECTION] and its four corners, therefore, the execution court is required to make an order confirming the sale where either no application is made under [SECTION], [SECTION] or [SECTION] or if one is made and disallowed, and thereupon the sale becomes absolute; it does not speak about the filing of an appeal or the sale becoming absolute on the dismissal of an appeal taken from the order disallowing the application under [SECTION], [SECTION] or [SECTION]. But this was done so on interpretation by the Privy Council of the phrase in the third column of [SECTION] of the [ACT] of 1[SECTION]8. The reason for taking this view as expressed by Sir [ENTITY] who delivered the judgment on behalf of the Board is found mentioned at page 136 (columns 1 and 2) just before the passage which I have extracted above Those reasons apply mutatis mutandis in a case where the application for setting aside sale has been filed not under any of the rules mentioned in [SECTION] but even under [SECTION] of the Code or even where the application is for setting aside the sale in exercise of the inherent power of the court.
In terms neither [SECTION] of the Code speaks about setting aside of court sale. But it is beyond any doubt that recourse to those provisions is taken in appropriate cases for setting aside sales or declaring the sales void, as the case may be. In such a situation, is there any difference on principle between the Privy Council case and the case where the application for getting rid of the sale is filed not under [SECTION], [SECTION] or [SECTION] but under a different provision of the Code? The passage which I have extracted above from the decision of the Privy Council, in express terms, brings within its fold applications assailing sales not only under those 3 Rules which are mentioned in [SECTION] but also under any other provision of the Code. It is almost an invariable practice that when applications for setting aside sales or declaring them void are filed in the execution court before the sales are confirmed they are not confirmed until those applications are disposed of irrespective of the question as to under what provision of the Code the applications have been made. The sale is not confirmed for the sake of justice in such cases.
Although [SECTION] may not be attracted in terms, but the principle would apply and may, under the inherent power of the court, be followed in appropriate cases as observed by a Bench of the Madras High Court in [PRECEDENT]. That being so, the sale is not confirmed nor does it become absolute during the pendency of the application for getting rid of the sale in the execution court. Why then, applying the ratio of the Privy Council decision, should it not be held that the sale becomes absolute within the meaning of the third column of [SECTION] of the [ACT] of 1[SECTION]8 and [SECTION] of the new [ACT] when the application is finally disposed of by the higher court either in appeal or in revision, as the case may be?
5. The view which I have expressed above finds direct support from a Bench decision of the Assam High Court in [PRECEDENT]. [PRECEDENT] where it has been pointed out to quote the placitum that
"Where the formal order of confirmation of an execution sale is challenged within 3 years by a petition under [SECTION] and [SECTION], [ACT], the order itself comes into question, and the sale becomes absolute not on the date when the formal order of confirmation was passed but on the termination of the litigation commenced by the judgment-debtor for having the sale set aside."
The decision of [ENTITY], C. J. and [ENTITY], J., in [PRECEDENT] would also help on the principle of law under discussion although it may be pointed out that under [ACT] Amendment in [SECTION] and [SECTION] the sale cannot become absolute during the pendency of [SECTION] application.
6. Another distinction which is sought to be made out by Mr. [ENTITY] is that [CASE NUMBER] attacking the sale in question was filed after the expiry of the 30 days. That, in my opinion, makes no difference. It has been pointed out by the Supreme Court in [PRECEDENT] that an application for setting aside sale, if it is voidable, had to be filed within 30 days of the sale and, if void, within 3 years even though the application in either case may be under [SECTION] of the Code. It is to be noticed, however, that in view of the fact that [CASE NUMBER] was filed on 3-6-61 within 30 days of the sale and before it was dismissed for default, [CASE NUMBER] was also filed, the sale was not confirmed by the execution court, as stated above, until [CASE NUMBER] was also dismissed on 30-4-62.
It may be, although I express no opinion in this regard, that if on the expiry of 30 days the sale is confirmed by execution court and then an application is put in for setting aside the sale or declaring the sale void, the date of disposal of such an application either in the execution court or in the appellate court will not justify the taking of the view that the sale which had become absolute when it was confirmed on expiry of 30 days was not so when the application was made for getting rid of the sale after its confirmation. But that is not the point here. In this case, it was confirmed by the execution court only when [CASE NUMBER] was dismissed, and the continuation of the miscellaneous appeal arising out of that miscellaneous case was clearly a matter which did not permit the sale to become absolute within the meaning of the third column of the relevant Articles of the [ACT] until the final disposal of the appeal.
7. Mr. [ENTITY] then submitted that the dismissal of [CASE NUMBER] on the 29th of June, 1963 was also on the ground of defect of parties and in that view of the matter the date when the appeal was disposed of should not be the starting point in this case. I fail to see any force in this argument Firstly, the appeal was disposed of on merits as well as on the technical ground of defect of parties. Secondly, even assuming that it was disposed of on the latter ground alone, it would make no difference The appeal war admitted, proceeded to disposal and was disposed of on the 29th of June, 1963. That is sufficient for justification of the view that the sale became absolute when the miscellaneous appeal was dismissed, on whatever ground it might have been dismissed.
8. Mr. [ENTITY] then contended that in view of the provision of law contained in [SECTION] of the [ACT] it should be still held that the application of the decree-holder petitioners filed on 4th of April, 1964 was barred by limitation, even though the starting point was the 29th of June, 1963, the date when the miscellaneous appeal aforesaid was dismissed.
[SECTION] reads thus
"Notwithstanding anything contained in this Act, (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian [ACT], 1[SECTION]8, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian [ACT], 1[SECTION]8, whichever period expires earlier;
(b) any appeal or application for which the "period of limitation is shorter than the period of limitation prescribed by the Indian [ACT], 1[SECTION]8, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian [ACT], 1[SECTION]8, whichever period expires earlier."
Counsel submitted that the period of limitation prescribed under the new Act is shorter than the period of limitation prescribed by the Indian [ACT] of 1[SECTION]8 and in that event under [SECTION], the application could be made within a period of [SECTION] days next after the commencement of the new Act or within the period prescribed for such an appeal or application by the Indian [ACT], 1[SECTION]8, whichever period expired earlier. Obviously, if Clause (b) is attracted, the period which expired earlier was the period of [SECTION] days. The new Act came into force on the 1st of January, 1964 and [SECTION] days from 1st January, 1964 expired on the 31st of March, 1964. The application, in that event, was barred by limitation by 4 days, But the question is: Are the provisions of [SECTION] attracted to this case? In my opinion not.
It is a well-settled principle of law that the law of limitation being a law of procedure is retrospective in operation; that is to say, as held by the Privy Council in [PRECEDENT] and in several decisions of the [ACT] High Court, to wit, [PRECEDENT] and [PRECEDENT], the law of limitation which governs an action is the law which prevails on the date when the suit is instituted or when the appeal or application is filed. Under [SECTION] of the [ACT] or under the same Section of [ACT] of 1[SECTION]8, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. In the instant case, the application made, was within the period of one year, counting from the date of disposal of the miscellaneous appeal. In that view of the matter, [SECTION] of the [ACT] did not make the application in the instant case barred by limitation. In such a situation, the provisions of [SECTION] were not attracted at all. If a suit, appeal or application filed on a particular date after coming into force of the new [ACT] is not barred under the provisions of this Act, recourse to [SECTION] need not be taken and is not permissible to be taken. In that event, only [SECTION] comes into play, which says that
Nothing in this Act shall, (a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian [ACT], 1[SECTION]8, expired before the commencement of this Act; or
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement."
That is to say, if the remedy was barred by the expiry of period of limitation prescribed under the old Act of 1[SECTION]8 before the commencement of the new Act of 1963, a larger period, if any, prescribed under any of the articles of the new Act will not revive the remedy which was barred. But subject to that, if the filing of the suit, appeal or application is not barred under the new Act on the day it is filed, it is simply, not barred. If, however, it is barred on the day when it is filed under [SECTION] of the new Act but it was not so barred under the period of limitation prescribed by the [ACT] of 1[SECTION]8, then and then only [SECTION] comes into play in order to find out as to whether, taking recourse to [SECTION], it can be held that the suit, appeal or application filed on a particular day is not barred by limitation I shall illustrate my point.
9. Suppose a suit by Government under the old [ACT] could be filed within 60 years from the date when the right to sue accrued, the period under the new Act being 30 years. Suppose further that a right to sue accrued to the Government, say, in the year 1930 and the suit is filed in 1966. Obviously, it would be barred under the new Act but not under the old Act. In such a situation, [SECTION] will come into play and the suit can be filed by the Government by the end of 1968 on the expiry of 5 years next after the commencement of this Act, Suppose the right accrued to the Government, say in the year 1[SECTION]5. Then such a suit could be filed in the year 1965, counting the period of 60 years from 1[SECTION]5, otherwise anomalous results will follow, Suppose the right to sue accrued to the Government, say, in the year 1958.
Under the old law the suit could be filed by the year 2018; under the new law it could be filed by 1988. But if [SECTION] is applied to such case, it will have to be filed by the end of 1968. That is to say, the period of limitation will be neither 60 years nor 30 years but it would be 10 years only.
Such an interpretation of [SECTION] will be highly unreasonable and against the principle underlying it. Similar is the meaning which has got to be given, by necessary rules of construction, to [SECTION]. And, to emphasize the point again, if an appeal or an application, when filed after 1-1-64 is barred under the new [ACT] but not under the old one, then it has to be filed before the expiry of [SECTION] days or the expiry of the period prescribed under the old Act, whichever expires earlier. But in the instant case, when the application filed on 4-4-64 under [SECTION] of the Code was not barred under the new Act nor was it barred under the old law on the day of 'the commencement of the new law, neither [SECTION] nor [SECTION] came into play and under [SECTION] of the new Act it was within time. The learned Munsif has committed an error of jurisdiction in refusing to issue writ of delivery of possession by taking an erroneous view on the point of limitation vide [PRECEDENT], [PRECEDENT] and [PRECEDENT].
10. In the result, the application is allowed, the order of the learned Munsif is set aside and it is held that the application filed by the petitioners under [SECTION] of the Code for delivery of possession is not barred by limitation. The court below will now proceed to deal with it in accordance with law. On the facts of the case. I would make no order as to costs.
[ENTITY], J.
11. I agree.