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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:

L...I...T.......T.......T.......T.......T.......T.......T..J     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