S.C. Pandey, J.
This is an appeal filed by the defendant No. 3, the auction-purchaser, u/s 100 of the Code of Civil Procedure. This appeal arises from the judgment and decree dated 13.10.1995 passed by Smt. Maitrayee Mathur, the Ninth Additional Judge to the Court of District Jabalpur, in Civil appeal No. 26/95 arising out of the judgment and decree dated 29.3.1994, passed by Sixth Civil Judge Class-I, Jabalpur, in Civil Suit No. 174-A of 1922.
The respondent No. 1 filed Civil Suit No. 174-A of 1992 for a declaration to the effect that the auction sale of houses bearing Municipal Corporation No. 668,669,670 and 671 situate of Belbagh, Jabalpur, is null and void. Besides the appellant, the respondents No. 2, 3 and 4 were also made defendants in the suit.
The respondent No. 1 interlaid, claimed that he was the owner of the suit-houses by virtue of registered sale deed, executed by the brother Mathura Prasad Shukla, in his favour on 29.7.1970, who, in turn, had purchased the suit property from Bhairon Prasad Vishwakarma by a registered sale-deed, dated 6.4.62. It was further alleged by the respondent No. 1 that Bhairon Prasad Vishwakarma had taken a loan of Rs. 5000/- from the Industries Department of the State, the respondent No. 4. At the time of recovery of the loan on 1.12.1962, Bhairon Prasad Vishwakarma included the suit property in the solvency certificate submitted by him, for securing the loan. This, the Industries Department was under false impression that the suit property belonged to Bhairon Prasad Vishwakarma. When Bhairon Prasad Vishwakarma did not repay the loan, the Assistant Director of Industries, Jabalpur issued a Revenue Recovery Certificate against Bhairon Prasad Vishwakarma for recovery of Rs. 6407/- to respondent No. 2, the Tahsildar, Jabalpur. Pursuant to that recovery, the suit property was attached in Revenue Case No. 1036/A-76-77. Subsequently, following the prescribed procedure, the suit property was put to auction on 29.8.1980 for recovery of Rs. 8157/- the total amount due against Bhairon Prasad. The sale was confirmed and the appellant was given a sale certificate dated 30.9.80. The respondent No. 1 asserted in his plaint that he did not know about the sale in the year 1980 as he was in government service and was not at Jabalpur. The respondent No. 1 claimed that he retired on 31.7.80 and came to Jabalpur on 6.8.80. The respondent No. 1 stated that he was totally unaware about the pendency of the proceedings at Jabalpur. He therefore, wanted to dispose of the suit property in the year 1983. Then only he came to know about the auction-sale through a broker and then filed an objection on 7.6.83 after inspecting the file of auction case. This objection was rejected on 16.4.84 by respondent No. 3. Thereafter, the suit was filed on 13.9.84.
The suit was resisted by respondents No. 2 and 3 who claimed that the houses were already mortgaged with them. They claimed mat the auction was valid.
The appellant interlaid claimed that the respondent No. 1 was not the owner of the suit houses. He had allowed Bhairon Prasad Vishwakarma to act as the owner of the property. The property was in his possession. It was also recorded in the Municipal Papers in his name. It was further alleged that the suit property was sold with the full knowledge of the respondent No. 1. Despite the knowledge of the pendency of the auction proceedings the respondent No. 1 did not take any step to challenge the auction. It was, therefore, pleaded that the appellant was a bonafide purchaser of the suit property for full value and respondent No. 1 was, therefore, stopped from challenging his title. It was asserted that the suit was not maintainable. The appellant also took the plea that the order rejecting the objection of the respondent No. 1 was final and conclusive and, therefore, the suit was barred by resjudicata.
The trial Court rejected the plea of the appellant and the respondents No. 2 and 3, on each count. It held that the suit was maintainable, it held that the order of rejection of objection did not amount to resjudicata. It rejected the plea of the appellant that the respondent No. 1 was stopped from challenging the title of the appellant. On merits, it held that the respondent No. 1 had 2/3 share in the suit property by virtue of the registered sale deed dated 24.7.70, executed by his brother Mathura Prasad Shukla, who had purchased the suit property from Bhairon Prasad Vishwakarma, on 6.4.62 by a registered sale-deed after paying full consideration. Since Bhairon Prasad Vishwakarma had already lost the title to the land, in dispute, it could not have been attached and sold for recovery of loan taken by Bhairon Prasad Vishwakarma on 1.12.62. Thus, the suit filed by the respondent No. 1 was decreed by the trial Court and the auction-sale dated 29.8.80 was held to be null and void.
The lower appellate Court has confirmed the judgment and decree of the trial Court.
The appeal was admitted on the following substantial question of law by order of this Court dated 26.3.96:-
Whether the appeal filed by the respondent No. 1. Jagdish Prasad Shukla, is barred by time ?
It appears that due to inadvertence, an error in the question of law framed by this Court went unnoticed. The correct substantial question of law should read like this:-
Whether the Civil Suit filed by respondent No. 1, Jagdish Prasad Shukla, is barred by time ?
Thus, in exercise of the powers u/s 152 of the CPC this Court makes a correction in the order sheet by substituting "Civil Suit" for the word "Appeal" and consequently, the word "appeal" shall be replaced by the word "Civil Suit" in the substantial question of law framed by this Court in the order sheet dated 26.3.96.
The counsel for the appellant urged that the suit was filed on 13.9.84 challenging the auction sale dated 29.8.1980 and, therefore, it was time barred. He further urged that the respondent No. 1 had admitted in his evidence that he had appeared before the Naib Tahsildar during the proceedings taken for auction, but he did not object. In view of this position it should be held that the suit was barred by time.
The counsel for the respondent No. 1, on the other hand, disputed the claim of the counsel for the appellant. He denied that the respondent No. 1 anywhere admitted that he had participated in the auction proceedings. The counsel for the respondent submitted the facts are clear that the respondent No. 1 was not aware of the auction-sale till he decided to sell the house. It was only when the broker told him about the auction-sale, the respondent No. 1 filed an objection to the sale on 7.6.83. This objection was rejected on 16.3.84. According to counsel for the respondent No. 1 the suit was well within limitation.
The question of limitation shall be determined in accordance with the Article of limitation given in schedule of Limitation Act, 1963 relating to the suits. It may be noticed that the respondent No. 1 was not a party to the auction proceedings. It appears from the evidence on record that the respondent No. 1 was not aware of the auction proceedings, taken under the rules in schedule 1 of the M.P. Land Revenue Code which forms part of the Code, as per section 40 thereof. There is no substance in the argument of learned counsel for the appellant that the respondent No. 1 admitted that he was aware of the auction proceedings. On the contrary, the respondent No. 1 meant to say that-he attended the proceedings before Naib Tahsildar after he filed an objection. It is clear from the facts stated in the plaint that the auction sale was held on 29.8.1980. Since no objection was raised either under Rule 40,41 or 42 the sale was confirmed on 30.9.1980 and the sale-certificate was issued as per Rule 44 of Schedule-1. We are here concerned with Rules 41 and 42 of Schedule I. Since the respondent No. 1 was not aware of the auction proceedings, he did not file any objection under Rule 41 of Schedule I of the Code, prior to confirmation of sale. Once the sale was confirmed under Rule 44 of the Schedule I of the Code, the respondent No. 1 had no remedy under the Rules framed under Schedule I. Rule 45 (2) of the Schedule I caters to such a contingency. Rule 45 of the Schedule I of the Code reads as under:-
45. (1) If no application under rule 41 is made, within the time allowed, therefore, all claims on the ground of irregularity or mistake shall be barred.
(2) Nothing in sub-rule (1) shall bar the institution of a suit in the Civil Court to set aside a sale on the ground of fraud or on the ground that the arrear for which the property is sold is not due or on the ground that the defaulter had no saleable interest in the property sold."
Rule 45 (2) confers a right of filing a suit for setting aside the sale on the ground of fraud, non-existence of default or on the ground that the property could not be sold as the defaulter had no saleable interest in it. It is clear that Rule 45 (2) is in nature of an exception to Rule 45 (1). A suit to set aside an auction sale on aforesaid three grounds could be filed despite the fact that there was mistake or irregularity in the auction proceedings and the procedure as per Rule 45 (1) of filling an application under Rule 41 within time allowed was not followed. However, a person who was not a party to auction proceedings need not file a suit for setting aside auction sale. He can file a suit for declaration that sale is without jurisdiction illegal and null and void, and does not affect his right to property in dispute Khiaraj Mal Vs. Daim ILR 32 Cal. 296 (P.C.) Kanhaiyalal Hanmentrao Vs. Reginald and others 1951 N.L.J. 440, Kanhaiyalal Vs. Dr. D.R. Benaji and others Write here Case No. Once it is conceded that respondent No. 1 had a right to file such a suit as mentioned above, the fact that he filed objection to the confirmation of sale on 7.6.83 and this objection was rejected on 16.8.94 is of no consequence, unless a claim is made for excluding that time u/s 14 of the Limitation Act, 1963. It appears that entertainment of objection after the confirmation of the sale was contrary to the rules. The respondent No. 1 was left with only one legal remedy of filing a civil suit on the ground of nullity which he did on 13.9.84.
Now the question that arises is whether such a suit would be governed by Article 99 of the Limitation Act or by Article 58 of Limitation Act, 1963. It may be noted that Article 99 of the Limitation Act corresponds to Article 12 of Limitation Act, 1908 and Article 58 of Limitation Act, 1963 corresponds to Article 120 of Limitation Act of 1908. In fact, there was no Article like Article 58 in the Limitation Act 1908 but Article 120 was wide enough to cover what is now provided in Article 58 by way of residuary Article for suits for declaration. The applicability of Article 99 would be indicated by the words of column 1 of the Article which refers to the nature of the suit. It reads as under :-
To set aside a sale by a civil or revenue court or a sale for arrears of Government revenue or for any demand recoverable as such arrears.
It is, therefore, necessary that the suit filed should be for setting aside the sale. However, it is well established that when a sale is nullity, it need not be set aside. A bare declaration to the effect that the sale does not affect the plaintiffs right in the suit property would be enough. On the other hand, in certain cases, a plaintiff may be bound by an auction sale unless he got it set aside. He must, therefor file suit to get the sale set aside. Whatever be the prayer in the plaint, it is for the Court to determine the nature of the suit in order to apply proper Article of Limitation Act, 1963. We find from examination of the plaint that the respondent No. 1 had alleged that he was not a party to the auction proceedings. The entire auction took place on the assumption that suit property belonged to Bhairon Prasad Vishwakarma. The respondent No. 1 was not noticed. He claimed that he was not at all aware of the auction-sale. For the aforesaid reasons he was not bound by the auction-sale. Moreover, it was his claim that the auction-sale was null and void, as the defaulter had no saleable interest in the property when he took loan. The appellant and other respondents may have disputed these allegations, but they have not been able to prove or bring any fact on record to demolish the case of the respondent No. 1. In other words, the respondent No. 1 had backed his pleadings by the proof in evidence. This in this case, the respondent No. 1 has pleaded and proved (i) that he was not a party to the auction sale proceedings; and (ii) that the sale was null and void because, the defaulter had no saleable interest in the suit property. Consequently the auction-sale was not binding on him and, therefore, Article 99 would not govern the suit filed by the respondent No. 1.
Part III of the Schedule of Limitation Act, 1963 deals with the suits relating to declarations. Article 56 deals with suit for declaring an instrument issued or registered as forgery and Article 57 deals with a suit regarding the declaration of an alleged adoption to be invalid. Apart from the suits covered by this Article there arc numbers of declaratory suits filed everyday. It is not possible to provide limitation for each and every kind of declaratory civil suits. Therefore, after omitting certain other declaratory suits provided by Article 93, 119 and 129 of the Limitation Act, 1908, the legislature has provided a residuary Article 58 for the suits for declaration in the Limitation Act, 1963. Such a suit would be for obtaining any other declarations. Every student of law knows the omnibus nature of such a residuary clause. In the Limitation Act of 1908 there was no specific Article in the nature of residuary Article for a suit for declaration. At that time general residuary Article 120 in the Limitation Act, 1908 (corresponding to Article 113 in the Limitation Act, 1963) was made applicable to such suits. However, now the specific residuary Article shall exclude the general residuary Article, Generali bus specialia derogant. Thus, this Court comes to occlusion that Article 58 would be applicable to the facts of the case. The conclusion of this Court is supported by a specific case of this kind under the M.P. Land Revenue Code, 1954 and Limitation Act, 1908. After quoting a similar rule as Rule 45 in Schedule I. K.L. Pandey, J. observed in Phoolchand Harishankar Vs. Matthooprasad Jagannath Prasad 1961 M.P.L.J. 200 at page 291 as under:-
In my opinion sub-rule (1) of rule 33 does not bar all claims but only those grounded on irregularity or mistake and, even in such cases, when the irregularity or mistake is brought about by fraud or when the mistake lies in assuming that the defaulter had a saleable interest in the property or that the arrear for which the property sold was due when in fact it was not due, it is permissible to file a suit to set aside the sale. Except as above indicated, sub-rule (2) should be regarded as enacted ex abundanti cautela without affecting other claims not founded on irregularity or mistake. For example, when a sale is void, it need not be set aside. Article 12 of the Limitation Act, which prescribes one year''s limitation for setting aside a sale made in pursuance of an order of a Revenue Officer, does not apply to such a case : Motilal Vs. Karrabuldin Khirajmal Vs. Daim, Purna Chandra Chatterjee Vs. Dinabhandhu Mukerjee Lakahmadu Vs. Kamudu Karashiddayya Shiddayya Vs. Shree Gajanan Urban Co-operative Hank Ltd. and Rahim Vs. Khoreed Alam The Privy Council pointed out in Motilal''s case that there was a wide difference between setting aside a sale and holding that the plaintiffs rights were unaffected by it and held in Kirajmal''s case distinguishing the case of Malkarjun Vs. Narhari that the observations there in made did not apply to a case where the sale was null and void.
It is not necessary to multiply the authorities on this point as this Court agrees with the decision of the learned single Judge of this Court and is bound by it. That apart, the view taken by the learned Single Judge is based on several authorities including that of privy council.
Having held that Article 58 of the Limitation Act applies, the only question that remains to be answered is whether the suit would be within limitation when it was filed in 13.9.84. The Article 58 of Limitation Act. 1963 provides limitation of "three years" from the time "when the right to sue first accrues". When did the right to sue accrue in this case. On the dale of auction-sale on 29.8. 1980 or when the sale was confirmed on 30.9.1980; or when the respondent No. 1 came to know about the auction sale behind his back on or about 7.6.1983. There would be no difficulty if the suit was filed within three years from the date of auction-sale but the suit was filed after a lapse of three years from 29.8.80 the day the auction-sale was hold. The question is: Does the date 29.8.80 forms the terminus quo from which accrual of cause of action would be reckoned ? The answer to above question would depend upon what is meant by ''accrual of cause of action'', in relation'' to the suit for declaration filed herein. The respondent No. 1 has been held to be the owner of 2/3 share in the suit property. The rest of it belongs to his brother. The defaulter had already sold the property to Mathura Prasad Shukla even prior to taking of the loan and yet he included on his solvency certificate the suit properly when he obtained the loan. Mathura Prasad Shukla and the respondent No. 1 were kept in dark and the suit property was sold in the auction behind the back of respondent No. 1. In such a case an owner who has all the bundles of rights over his property can only be threatened when he comes to know that his title is under a cloud and somebody is likely to claim a title to the property can only be threatened when he conies to know that his title is under a cloud and somebody is likely to claim a title to the property-in-dispute. The respondent 1 had 2/3 share in the suit property. So far as his share was concerned, the respondent No. 1 had lull right to get it partitioned. However, the right of both the co-owners would be indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration so long as they lived and acted jointly. In the event of death their rights would be heritable. When such right of ownership is threatened 7 The threat would not be there unless a person known that his right of ownership is under a cloud. For the reasons aforesaid, this Court holds that causes of action accrues to a owner of property only when his right to property is under threat and this threat is communicated to the owner clearly and unequivocally. The threat has to be communicated overtly. In the case before us the threat was in form of proceedings under Schedule I of M.P. Land Revenue Code and it was communicated overtly, when the broker''s informed the respondent No. 1 about it. This information and later on confirmation of the information by respondent No. 1 upon visual inspection of Revenue Case No. 1036/A/76/77 gave to the respondent No. 1 a notion of clear and unequivocal threat to his right to the suit property. This happened on or about 7.6.1983. This event is also part of the cause of action against the appellant and the respondents No. 2, 3 and 4. The suit was filed within good time on 13.9.84 i.e. within three years from the date of accrual of cause of action, on 7.6.83.
The conclusion of this Court is supported by decision of Patna High Court in the case of
The language of Art. makes, it is true, no preference to the knowledge of the plaintiffs, but there may conceivably be cases where the nature of the right imports knowledge of certain facts, and in such cases the right to sue cannot be said to arise until the plaintiffs have the necessary knowledge. There can be no apprehension of threat to right where due to mistake or fraud things are done in secrecy or at the back of the plaintiffs. The present is one of such cases.
For the reasons given here in before, this appeal fails and is dismissed with costs. Counsels fee is fixed at Rs. 250/- (Rupees two hundred fifty).
