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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