1. The facts of this case, so far as it is necessary tostate them, are as follows:--

The plaintiff was an eight-anna patnidar under thedefendants Nos. 1 to 4. The patni was sold on the 15th November 1889, under theprovisions of Regulation VIII of 1819, for current arrears of rent, and waspurchased by the defendant No. 5 who, on the lot being knocked down to him,paid fifteen per cent of the purchase-money as inquired by section 9 of theRegulation; the balance of the purchase-money was paid on the 21st November,1889.

2. A proceeding of the Collector, dated the 2nd December,1889, (Exhibit No. 4 on the record), recites the sale, the payment of fifteenper cent of the purchase-money on the date thereof, and the payment of thebalance on the 21st November, 1889, and directs the granting of the certificateof the payment of the entire purchase-money, which, under section 15 of theRegulation, a purchaser is entitled to receive, to the defendant No. 5. Whetherthe certificate was, as a matter of fact, ever handed to the defendant No. 5 ornot, does not appear: no such document or copy thereof is on the record.

3. On the 1st December 1890, the plaintiff instituted a suitin the Court of the Subordinate Judge of Rajshahye for the setting aside of thesale on the ground of various irregularities and illegalities in the conductthereof. The defendant pleaded limitation, contending that the sale becamefinal and conclusive on the 21st November, 1889, when the balance of thepurchase-money was paid and that, under Article 12 of the second Schedule ofthe Limitation Act, the suit was barred. The Subordinate Judge decided theissue of limitation in favour of the defendants, and on this and other groundsdismissed the plaintiffs suit; he deals with the point of limitation asfollows:--

According to Article 12, Schedule II of Act XV of 1877, oneyear is the period of limitation for a suit to set aside the sale of a patnitaluk, sold for current arrears of rent. This Article has four clauses relatingto sales taking place under different circumstances. Clause (a) relates to asale in execution of a decree of the Civil Court; clause (b) to a sale inpursuance of a decree or order of a revenue officer; clause (c) to a sale forarrears of Government revenue or for any demand recoverable as such arrears;and clause (d) to a sale of a patni taluk sold for current arrears of rent.

I will now consider whether that Article bars the prayer forsetting aside the sale in this case. From Exhibit 4 filed by the plaintiff itappears that the sale took place on the 15th November, the balance of thepurchase-money was deposited on the 21st November, and the order confirming thesale was passed by the Collector on the 2nd December, 1889. The plaint wasfiled on the 1st December, 1890. The defendants contend that the time fromwhich the period of limitation began to run was 21st November, but theplaintiff contends that it began to run from 2nd December. It is argued by thedefendants that there is no necessity for confirming a sale under RegulationVIII of 1819; that the sale became final by operation of law; that theconfirming Robakari (Exhibit 4) is surplusage; and that even if it is notsurplusage, according to the printed form it should have borne the date of thepayment of the balance of the purchase-money (vide original). The words of thefirst clause of section 15 of the Regulation are:--"So soon as the entireamount of the purchase-money shall have been paid in by the purchaser at anysale made under this Regulation, such purchaser shall receive from the officerconducting the sale a certificate of such payment." There is no provisionin the law for confirming such a sale and accordingly we find in the thirdcolumn of Article 12, Schedule II of the Limitation Act, the words:--"orwould otherwise have become final and conclusive had no such suit beenbrought." As regards sales in execution of a decree of a Civil Court wehave a distinct provision for confirming them, but there is none in referenceto the sale of a patni taluk for current arrears. Under the circumstances, Ihold that the time began to run from the 21st November and not from the 2ndDecember 1889, and, therefore, the claim to set aside the sale is barred bylimitation.

4. The plaintiff appealed, and on appeal, the District Judgehas reversed the Subordinate Judges finding on the question of limitation, andhas decreed the suit. The District Judges judgment on the question oflimitation is as follows:--"Clause (a) of Article 12 of Schedule II of theLimitation Act runs as follows:--"To set aside the sale of a patni taluksold for current arrears of rent, one year from the date when the sale isconfirmed or would otherwise have become final and conclusive had no such suitbeen brought." The sale took place on the 15th November 1889, the whole ofthe purchase-money was paid on the 21st November. The formal order confirmingthe sale was recorded on the 2nd December 1889, and the suit was instituted onthe 1st December 1890. In Regulation VIII of 1819, there is no provision forrecording an order confirming the sale, as there is in the Civil ProcedureCode, section 312, so the Court below argues that the part when the sale isconfirmed is not applicable to this case, it being applicable to cases wherethe sale has to be confirmed under the law, the latter part, viz., "whenthe sale would have become final and conclusive had no such suit beenbrought" being applicable to this case. The point is not free fromdifficulty. Section 15 of the Regulation says,--"So soon as the entireamount of the purchase-money shall have been paid in by the purchaser at anysale made under this Regulation, such purchaser shall receive from the officerconducting the sale a certificate of such payment," and then it says howthe purchaser will proceed to perfect his title and to obtain possession. Theentire amount of the purchase-money had been paid on the 21st November, but theorder for the issue of the certificate was made on the 2nd December, and thesame order confirmed the sale (Exhibit No. 4). The order recites that the wholeof the purchase-money has been paid on the 21st November. That any othercertificate of payment was granted has not been shown. If it be held that,notwithstanding the fact that the sale was actually confirmed by the formalorder of the 2nd December, the sale had become final and conclusive on thepurchase-money being paid on the 21st November, the suit must be held to havebeen barred by reason of its having been brought after the expiration of oneyear from the 21st November. If, on the other hand, it be held that theplaintiff ought to have one year from the date when the sale was, as a matterof fact, confirmed, he will be in time as the sale was confirmed on the 2ndDecember. It has not been shown under what rule the order confirming the salewas recorded. The learned Pleader for the respondent shows a printed form orsuch order and argued from the word adya, i.e., this day, used in that formthat it is evidently intended that the certificate of payment, such as iscontemplated by section 15 of the Regulation, is to be issued on the very daythat the purchase-money has been paid. No doubt it is so, but a particular formwill not affect the law unless it is shown that the form was prescribed byauthority and the law empowered that authority to prescribe that form. It iscertain that under the law the purchaser is entitled to a certificate ofpayment, and the law says that such certificate is to be issued so soon as theentire amount of the purchase-money shall have been paid. It is equally certainthat no such certificate was issued before the 2nd December. But after all acertificate of payment is only evidence of payment. The law does not lay downdefinitely that such certificate must be issued on the day the money is paid.All that it says is that so soon as the money has been paid the purchaser shallreceive the certificate. So soon, i.e., soon after the payment. In this case itwas ordered to be issued 11 days after the money was paid. Now, whether the lawrequires the sale to be confirmed or not, the practice has been to record anorder confirming the sale as the form indicates, and the law says that a suitorwill have one years time from the date the sale has been confirmed. The law oflimitation is a law restrictive of the rights of parties, it must beinterpreted literally. It does not say that only in such cases where under thelaw the sale has to be confirmed that the party is to get one year from thedate of confirmation but it says one year from the date that the sale isconfirmed, and we find that the sale was, as a matter of fact, confirmed on the2nd December, so I do not see any reason why the plaintiff should not beentitled to have one year from the 2nd December. I hold that the suit is notbarred by the one years rule of limitation."

5. In second appeal it has been argued on behalf of theauction-purchaser that the District Judge was wrong in holding that suit wasnot barred by limitation, and that time began to run against the plaintiff from2nd December 1889, that inasmuch as an auction-purchaser under Regulation VIIIof 1819 is entitled under section 15 to get a certificate of payment of thepurchase-money immediately on his paying the amount, the Judge should have heldas a matter of law that the payment of the full purchase-money was as good asthe receipt of the certificate and had the effect of making the sale final andconclusive on the day the payment was made, and that the Judge should have heldthat there being no provision of law requiring a formal order of confirmationof the sale, the order of the Collector of 2nd December, 1889, did not preventlimitation beginning to run against the plaintiff from the date of the paymentof the balance of the purchase-money.

6. The first question we have to determine, is what is thetrue construction of Article 12 of the second Schedule of Act XV of 1877. Is itto be construed as meaning, that time began to run from the date of theconfirmation of the sale in all cases in which, as a matter of fact, there hasbeen such a confirmation, even though as a matter of law no such confirmationis necessary; or, on the other hand, is it to be construed as meaning that timebegins to run from the date of the confirmation of the sale only in those casesin which such confirmation is required by the law under which the sale is held,and, in other cases from the date on which the sale becomes otherwise final andconclusive by the law under which it is held.

7. If the former construction is the correct one, thedecision of the lower Appellate Court is right, for the sale was confirmed on2nd December, 1889, and this suit was brought on 1st December 1890. If thelatter construction is correct, a further question arises, viz., since salesunder Regulation VIII of 1819 do not require confirmation, when does a salethereunder become final and conclusive if no suit is brought to set it asideWe are of opinion, that the latter construction is the correct one.

8. We are of opinion that the words in the third column ofArticle 12 "when the sale is confirmed," must be held to refer to thetime of confirmation of the sale as the starting point for limitation only inthose cases in which such confirmation is required by the law under which thesale is held to make it final and conclusive; and that the remaining words inthe third column "or would otherwise have become final and conclusive hadno such suit been brought" refer to those cases in which no confirmationis required by the law under which the sale is held to make them final andconclusive, but which become final and conclusive by defluxion of time (seesection 27 of Act XI of 1859) or immediately on the sale taking place. In thisview we must hold that the lower Appellate Court was wrong in reckoning timefrom 2nd December 1889, the date of the confirmation of the sale. Time began torun from the date when the sale became final and conclusive; and we have now todetermine what that date was. In the absence of any agreement to the contraryor of any statutory restriction, a sale of moveable or immoveable propertybecomes final and conclusive on the payment by the purchaser to the seller ofthe full amount of the purchase-money.

9. No special agreement is alleged in this case, and theRegulation under which the sale was held imposes no restriction. We must,therefore, hold that the sale became final and conclusive on 21st November1889, when the balance of the purchase-money was paid. This view is supportedby section 15 of the Regulation.

10. The learned Counsel for the respondents argued that assection 15 of Regulation VIII of 1819 requires the purchaser to take acertificate of payment, and as no such certificate was obtained in this case,the suit cannot he held to be barred by limitation. We do not consider thisargument sound. In the first place, section 15 does not render the taking of acertificate necessary for the completion of the sale. And in the second place,even if it does render a certificate of payment of the purchase money necessaryfor certain purposes such as obtaining mutation of names in the zamindarsoffice, that does not affect the present question. The sale must be held tohave become final and conclusive so soon as the purchaser became entitled toobtain such certificate, that is, so soon as the entire amount of thepurchase-money was paid. And the suit, having been brought more than one yearafter the date of such payment, when the sale became final and conclusive, mustbe held to be barred by limitation.

11. The appeal must, therefore, be decreed, the decree ofthe lower Appellate Court set aside and that of the first Court restored, withcosts in this Court and in the Court of appeal below.

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Bhuban Mohun Maitravs. Girish Narain Moonshi(22.06.1894 - CALHC)