<NAME>, J.

1. In 1903, the plaintiff applied to the Collector for a grant of the occupancy of Survey Nos. 46 and 47 in the village of Ajanti. The occupancy was accordingly granted to him on payment of Rs. 99, being three times the annual assessment. The grant was made on what is popularly known as "the restricted tenure ", certain conditions being annexed prohibiting, alienation as permitted by Section 68 of the Bombay Land Revenne Code. The relevant words of the Kabulayat are as follows Neither I, nor my heirs nor any agent acting on my behalf will create any encumbrance on the land or any portion of it by way of lease, mortgage or sale or in any other manner.

2. On August 9th, 1915, the plaintiff made an application to the District Deputy Collector in which he stated that the two lands were taken up jointly by himself and defendant No. 2, and prayed that Survey No. 46 might be transferred to the came of defendant No. 2. On August 21, 1915, the statement of defendant No. 2 was recorded by the <NAME>. He said that he had paid the price of Survey No. 43, and prayed that it should be transferred to his name. On November 3rd, 1915, the District Deputy Collector held that there was a private arrangement between plaintiff and defendant No. 2 which constituted a breach of the conditions set out above and directed that the lands should be forfeited. In pursuance of this order plaintiff was evicted on January 18th, 1916 and on February 7th, 1916 the Collector rejected the appeal made to him. The suit was filed on February 6th, 1917.

3. There is no dispute as to the above facts. It may be remarked that if there was in fact a breach of the conditions of the <ORG> plaintiff would cease to be entitled to the occupation of the land as provided for by Section 68 of the Bombay Land Revenue Code and would, therefore, be liable to be summarily evicted by the Collector in exercise of the powers conferred by Section 79A. It is also clear that by virtue of Section 10 the District Deputy Collector was empowered in this behalf. It may further be remarked that the use of the word "forfeiture " in the District Deputy Collector's order is erroneous, but this is a matter of form only. What was in effect done was to evict the plaintiff summarily.

4. The only question of fact which is obscure is what was the exact nature of the arrangement between plaintiff and defendant No. 2. The lower Court holds that there was no agreement prior in date to the <ORG> and that is probably correct. The lapse of eleven years renders this unlikely and the evidence of defendant No. 2 on the point is vague and unsatisfactory. He says: " I do not remember if I and <NAME> paid half and half the amount that was first paid to <ORG>.... I asked <NAME> after he got the lands to give me S. No. 46 and he consented ". The truth of the matter appears to be that defendant No. 2 from time to time advanced money to plaintiff for expenses of cultivation (the lands were originally waste) and that latterly they arranged for the transfer of one of the lands. It may be noted that this was apparently the case for defendant No. 1 in the lower Court. In Exhibit 17-the pursis of the <ORG> Pleader-it is said plaintiff has broken the conditions inasmuch as he has alienated S. No. 46 to defendant 2 ". There is no evidence that any money was paid as purchase money and admittedly no document was executed. In these circumstances it is difficult of <ORG> to understand in what way there has been a breach of the Condition of the <ORG>. There was at most a contract for sale which of itself creates no interest in or charge on the property. Plaintiff and defendant No. 2 appear to have made false representations to the Revenue Authorities in the hope of inducing them to sanction the transfer but this can furnish no valid ground for the order of eviction. Beyond this there was nothing more than an attempt or intention to transfer which was never carried into effect. It may, however, be remarked that if there was indeed an antecedent arrangement such as was suggested by plaintiff and defendant No. 2 the case for applying b. 79A would be no stronger. The action taken was (in my opinion) premature, and not warranted by the terms of that section. The eviction was therefore wrongful.

5. But it has been urged in appeal that the suit is barred by limitation. The point was not taken in the lower Court, and it is urged that Order VIII, Rule 2, of the Code of Civil Procedure & precludes us from considering the point. That order cannot, I think, be read as overriding the established practice. This is a first appeal and the general rule is that effect should be given to a plea of limitation raised for the first time. It may further be noted that the facts necessary for the consideration of this plea are in substance set out in the plaint itself, which shows that the suit was filed more than a year after the date of the actual eviction. Thus it may be doubted whether, on a strict construction of Order VIII, Rull 2 it was necessary for defendant No. 1 to plead limitation (see the words "or would raise issues of fact not arising out of the plaint ").

6. It is argued for defendant No. 1 that the suit is barred by Article 14 of Schedule I of the Indian Limitation Act. The act of eviction, it is urged, was the act of an officer of Government in his official capacity, and as the suit was admittedly brought more than a year after the date of that act it must be held to be barred. The exact scope of Article 14 is a question not freo from A difficulty but I am unable to find any ground on which this case can be distinguished from <NAME> v. Secretary of <ORG> for India (1900) I.L.R. 24 Bom. 435. In that case it was held that if a Collector disposed of land, the property of a private individual, purporting to act under Section 37 of the Bombay Land Revenue Code, the disposition is a nullity because Section 37 does not give power to deal with the lands of private individuals. The order is in fact not one made by a public officer in his official capacity. It would appear to follow that the act of dispossession is equally a nullity-not in the sense that it is a negligible quantity but in the sense that it is not an act done by an officer in his official capacity. It, therefore, stands on no other footing than an act of dispossession by a private individual. The basic defect is that what is done is not within the statutory powers which the officer purports to exercise inasmuch as the land does not fall within that category to which alone Section 37 is applicable. In the present case as the conditions necessary for the exercise of the power of summary eviction conferred by Section 79A did not in fact exist the District Deputy Collector cannot be held to have acted in his official capacity. <CITATION> for India (1911) I.L.R. 36 Bom. 325 : 14 Bom. L.R. 332 the same line of reasoning is adopted. That also was a case under Section 37. The District Deputy Collector held erroneously that the plaintiff was not entitled to the possession of certain land, and the suit was filed more than a year after the order. It was held that the order gave the plaintiff a cause of action, but that as it was based on an erroneous view of the facts it was ultra vires. The District Deputy Collector did not, therefore, act in his official capacity and Article 14 had no application. It seems to me impossible to escape the conclusion that here too by parity of reasoning the act was not done by the District Deputy Collector in his official capacity. The same principle is laid down in Maharaja of Vizianagaram v. <NAME> (1906) I.L.R. Mad. 280. Where an officer of Government purports to act under a statutory authority but in fact acts in excess of that authority his act should be treated as a nullity. It is perhaps simpler to say that the act is not an official act for that view brings out more clearly the reason why Article 14 is no bar. This appears to be the view hitherto taken by this Court, and no valid ground is shown for questioning it. It would appear to follow that Article 14 has no application here. It is not disputed that the suit is otherwise in time.

7. I would, therefore, reverse the decree of the lower Court and make a decree for possession and mesne profits under Order XX, Rule 12, of the Civil Procedure Code. Possession to be given three months after the receipt of the record in the lower Court. Plaintiff to recover his costs throughout.

<NAME>, <NAME>

8. I concur. I desire to add a word with reference to the point of limitation raised on behalf of defendant No. 1 for the first time in the appeal before us. In view of the allegation in the plaint, according to the provisions of Order VIII, Rule 2, limitation ought to have been pleaded. No such point was made in the written statement which was practically confined to the point as to the breach of the conditions of the grant. It is a point, which, if not raised, is likely to take the opposite party by surprise. The effect of the omission to raise this point is, as stated by <NAME> in In re <NAME>'s Settlement Gant v. <NAME>, (1912) 1 Ch. 717, 728 with reference to the corresponding English rule, not to exclude from the consideration of the <ORG> the relevant subject-matter for decision simply on the ground that it is not pleaded, but to leave the party in mercy and the <ORG> will deal with him as is just. Having regard to the nature of the point, as also to the circumstance that it involves no investigation into any fresh facts, we have considered the point of limitation. It seems to me that the real question in the case is whether any breach of the conditions of the grant is established; for if that is not established under the circumstances of this case the defendant No. 1 must fail on the merits as well as on the point of limitation. That was probably the reason why the point of limitation was not separately raised in the lower <ORG>. Both on the question of fact as to the alleged breach of the conditions of the grant, and on the question of law as to the effect of that finding on the point of limitation I entirely agree with my learned brother.


ORDER <NAME> and <NAME>, JJ.

1. This is an appeal preferred by <ORG> against the judgment of <ORG> dated 3-6-92 in FAO No. 860/91. By the said judgment of <ORG> has set aside the decree passed by the Senior Sub-Judge, Patiala, on 6-3-91. The learned Senior Sub-Judge had set aside the Award dated 10-6-88 made by the Chief Engineer, Research and Arbitration, <ORG>, Chandigarh. The result of the judgment of <ORG> is that the Award was held valid and was directed to be made a Rule of Court.

2. Aggrieved by the said judgment, <ORG> and Chief Engineer have preferred this appeal.

3. There was a purchase order-cum-contract agreement entered into between the appellant <ORG> and the respondent dated 21-7-84 under which the respondent was to supply 41,500 poles of 8 meter long @ Rs. 353.00 per pole and another set of 3750 poles each 9 meter long @ Rs. 440.00 per pole. The terms and conditions of the contract stipulated that the prices were to be firm and were subject to "no variation whatsoever on any account". The payment, schedule of delivery thereof was also specified. It was, however, stated that the prices would be paid and excise duty was not applicable put if excise duty was levied, the prices would be Rs. 353/- per pole subject to production of documentary proof alongwith certain certificates, under Clause-9 of the contract 95% of the contract value was to be paid against receipt and balance 5% of the contract value of each consignment should be paid within 30 days of the receipt of material/acceptance by the consignee in good condition. Clause-9 related to the mode of delivery of goods. Delivery was to commence after 45 days after the receipt of the firm order and the whole quantity was to be completed within 12 months thereafter. Clause-13 stated that during the pendency of the contract/ purchase order if any performance in whole/ part by either party was delayed for the specified cause mentioned therein, or on account of any other cause beyond their reasonable control, neither of the two parties shall be made liable for losses or damages.

4. The respondent, it is alleged failed to supply and that therefore the appellant deferred supplies up to 22-4-85. On 30-3-86 the respondent requested the appellant to increase the price of the poles as the prices of raw material had also increased and the respondent requested the appellant to enhance the rate of the poles of 8 meter long at Rs. 50 per pole and Rs. 75 per pole of 9 meter long. On 22-4-85 the appellant Board decided to lift the ban imposed on the respondent. On 9-5-85 the appellant wrote to the respondent that prices in the purchase order were firm and subject to "no variation the whatsoever on any account" and that request of respondent for enhancement in prices of poles could not be acceded to. On 17-10-85 the respondent claimed payment of excise duty as per the increase made in the budget of that year. On 7-12-87 the respondent issued a notice to the appellant on various disputes.

5. Thereafter, the matter was referred to the arbitration in accordance with the terms of agreement. On 16/18-1-88 the respondent filed its claim statement before the arbitrator seeking a sum of Rs. 18.75 in Claim No. 1 in respect of increase in value of the poles. There were other claims. The total claim was for Rs. 39.50 lakhs. The appellant Board filed its reply refuting the claim of the respondent and also contended that disputes were not arbitrable to there was no liability.

6. The Arbitrator passed an award on 10- 6-88 for a sum of Rs. 17.71 lakhs with interest. Objections were filed by the appellant to the said award. The learned Sub-Judge by his judgment dated 6-3-91 set aside the award. But <ORG> allowed the respondent's appeal on 3-6-92 and directed the award to be made a rule of court.

7. It is this judgment against which the <ORG> has preferred this appeal.

8. In this appeal, we have heard learned Counsel for the parties. Learned Counsel for the appellant contended that Claim No. 1 which consisted of two parts in respect of which the respondent made a claim of Rs. 16.50 lacs and Rs. 2.25 lacs, related the increase in the price of the poles and that in view of the definite Clause in the contract the arbitrator had no jurisdiction to go into the question of increase of the price or award for any excess amount. So far as Claim No. II relating to excise duty is concerned, he contended that the difference in a sum of Rs. 0.95 lacs alone was payable. So far as Claim No. III for Rs. 12.00 lacs and Claim No. IV for Rs. 4.00 lacs are concerned, counsel contended that no case is made out for grant of damages. So far as Claim No. V is concerned, counsel contended that respondent is not entitled to any relief. Claim No. VI is relating to interest.

9. Learned Counsel for the appellant contended that the award was not a reasoned award and that it was not possible to find out if the total amount of Rs. 17.71 lakhs as awarded by the arbitrator related to Claim No. I which according to the appellant was not within the purview of the arbitrator. It is also not known on what basis any of the other claims were awarded and whether any amount was awarded for items for which arbitrator had no jurisdiction. Learned Counsel in that connection relied upon <CITATION> . and contended that such an award granting a lumpsum amount without reasons where some of the items are not arbitrable, was liable to be set aside.

10. Learned Counsel for the respondent, however, contended that certain calculations were made by the arbitrator. Counsel produced some record of the said computations but we find that it only related to Claim No. I. It was also stated that award could be passed for Claim No. I as the clause not permitting a higher rate would have been applicable only if the original delivery schedule was not postponed by the appellant. The award is not a reasoned one and it could not be interfered with by the <ORG>.

11. After hearing counsel on both sides, we are of the view that the award is liable to be set aside because when it is a non-speaking one, it is not known whether any part of the Award made by the arbitrator related to Claim No. I. In our view, the price of the poles was firm and not liable to be increased. The fact that the delivery schedule was changed cannot be a ground to get over the clause prohibiting increase in the price of the poles. Once Claim No. I is not tenable, the award has to be set aside inasmuch as it is not possible to say that the award did not relate to Claim No. I. This is a sufficient reason for setting aside the award and remitting the matter back to the abitrator.

12. We, therefore, set aside the judgment of <ORG> and we also set aside the judgment of the Senior Sub-Judge, we remit the matter to the arbitrator for his decision on the other claims, i.e. other than Claim No. I.

13. We are of the view that the Arbitrator who is now to deal with the matter afresh, must pass a reasoned award after taking into consideration the points raised in the Claim Petition of the respondent (other than Claim No. I) and the objections raised by the appellant in its reply filed before the Arbitrator. The parties are also agreed that a retired judge of <ORG> would be now appointed as a Arbitrator.

14. We hereby appoint Justice <NAME>, retired judge of <ORG>, Modern Housing Complex, Manimajra, Chandigarh, as Arbitrator to deal with the dispute between the appellant and the respondent as per the reference already made in the case earlier.

15. The Arbitrator is requested to complete the award expeditiously as this is an old dispute between the parties which has been pending for quite long time. We request the arbitrator as far as possible to complete the award within four months from the date of the first hearing. It will be for the arbitrator to stipulate his fee for the conduct of the arbitration proceedings and for passing the award. The award is to confine other than Claim No. I (Part I and II). The arbitrator will pass the reasoned award on the basis of the material already on record.

16. The appeal is allowed accordingly. There shall be no order as to costs.


PETITIONER: STATE OF MYSORE & ORS. Vs. RESPONDENT: <NAME> & ORS DATE OF JUDGMENT21/08/1975 BENCH: <NAME>, KUTTYIL KURIEN BENCH: <NAME>, KUTTYIL KURIEN RAY, A.N. (CJ) CHANDRACHUD, Y.V. CITATION: 1975 AIR 2190 1976 SCR (1) 369 1976 SCC (2) 895 ACT: Land Acquisition Act - Section 4 , Sec. 5-A and Section 6 . Madras Land Acquisition Rules 3(b). Mandatory or directory-Validity of notification Whether can be challenged after unreasonable lapse of time. HEADNOTE: The respondents are the owners of the land in question. the land was sought to be acquired for <ORG> at the instance of <ORG> of the State of Mysore. Section 4 notification was issued in the year 1960. After an enquiry into the objections filed under section 5A the land Acquisition officer sent his report to the <ORG>. <ORG> over-ruled the objection and issued a notification under section 6 . <ORG> at whose instance the land was sought to be acquired was not given notice as required by rule (b) of Madras Land Acquisition rules. The respondents field a Writ Petition in <ORG> challenging the validity or both the notifications on the ground that <ORG> was not consulted. <ORG> upheld the contention of' the respondents and quashed the notifications issued under sections 4 and 6 of the Act on the ground that if the <ORG> concerned filed any reply pursuant to the notice issued the objector would know what the <ORG> has stated by way of reply and at the stage of hearing of objection. tile objector might adduce evidence or address arguments to meet what is stated in such reply. The objector. could further urge before the <ORG> that the reasons given by the department in reply to the objections should not be accepted: On appeal by Special Leave it was contended by the appellant. 1. Rule 3 (b) is inconsistent With section 5A (2) for the reasons that sub section (2) of section 5A provides for further enquiry in the discretion of the Collector and rule 3(b) if treated as mandatory would be to convert the discretionary power into a mandatory duty and is therefore, ultra vires the section. 2. The provisions of rule 3(b) were not mandatory and that therefore, failure to issue the notice to the department concerned was not fatal to the validity of the notification. ^ HELD: 1. Section 5A requires the Collector to make a report after hearing the objections. It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under section 5A . The proceeding of the Collector are quasi-judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed. It would be helpful to the <ORG> in making the decision to have before it the answer to the objection by the department in order to appreciate the riv view point. Rule 3(b) is not Ultra vires Section SA. [372F-H 373 A-C] 2. In determining the question whether a provision is mandatory or directory one must look into the subject matter. and consider the importance of the provision disregarded and the relation of. that provision to the general object intended to be secured. One has to consider the nature the design and the consequence which will follow from construing a provision in one way or the other. Rule 3(b) was enacted for the purpose of enabling the Collector to have all the 370 relevant materials before him for coming to a conclusion to be incorporated A in the report to be sent to the <ORG> in order to enable the <ORG> to make proper decision. <ORG> was right in holding that the provision WAS mandatory. [373C-F] The notification under Section 6 was quashed but the notification under section 4 was upheld. [373-G] CIVIL APPEAL No. 1021 or 1973 The respondents raised further contention in the above appeal to the effect that notification under section 4 should be quashed since the public notice as required by section 4 is not given and the report under section 5A was not sent to the <ORG> within the prescribed period. HELD: The notification under section 4 was published on 13-4- 1967. Objections were filed by the respondent under section 5A of the Act. The notification under section 6 was published in October 1968. The Writ Petition was filed in July 1969. The respondent was not entitled to challenge the validity of the notification under section 4 of the Act as Writ Petition challenging the notification was filed after an unreasonable lapse of time. The respondent should have challenged the validity of the notification under section 4 within a reasonable time of' the publication of the notification. The respondent knew of the notification and file(l objections under section 5A of the Act. There is no substance in the argument that the report under section 5A was not sent to the <ORG> within the prescribed period. In any event since a fresh enquiry is directed under section 5A the Collector will in any event have to send a fresh report to the <ORG>. [374D-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1700 & 1827 and 1021 of 1973.

Appeals by special leave from the judgment and orders dated the 17-7-1972, S 6 1972 and 8-8-1972 of <ORG> in W.P.S NOS. 1921/1969/,2869/1967 & 3815/69 respectively.

<NAME>, Solicitor General of India, <NAME>, <NAME>, for the appellants (in Civil Appeal No. 1700/73).

<NAME>, <NAME>, for respondents (1-6 & 8-10) <NAME> & <NAME>, for the appellant. <NAME>, for respondents 1-7 <NAME>, for the appellants.

<NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by Civil Appeals Nos. 1700 & 1827 of 1973 <NAME> J.-We take up for consideration Civil Appeal No. 1827 f 1973. The respondents are the owners of the lands in question.

They were sought to be acquired for <ORG> at the instance of the Education department of the State of Mysore. In a notification under s. 4 of the Land Acquisition Act (hereinafter called the Act) dated 5-1-1960 and published in <ORG> dated 5-5-1960, it was stated that in view of the urgency of the cases, the provisions of s. SA of the Act shall not apply to the case. The respondents challenged the notification in a writ petition (No. 768 of 1960). When the writ petition came up for final disposal, a memo was produced on behalf of <ORG> and the <ORG>, On the basis of the Memo, dismissed the writ petition. The memo was to this effect: -

'`The respondent agrees to modify the impugned notification issued under Section 4(1) read with Section 17 of the Land Acquisition Act and to give an opportunity to the petitioner of being heard under Section 5-A of the Act. Hence the relief sought for by the petitioner becomes unnecessary."

The Special Land Acquisition officer, Mangalore, issued notices to the respondents stating that the respondents will be given opportunity to file Objections under s. 5A of the Act pursuant to the order in Writ Petition No. 768 of 1960. The respondents filed their objections and, after an inquiry, the Land Acquisition officer sent his report to the <ORG>. The <ORG> considered the report and over ruled the objections. This was followed by a notification under s. 6 of the Act. The respondents challenged the above notification as well as the notification under s. 4 by a writ petition in <ORG>.

The respondents attacked the validity of the notification on the ground that <ORG> at whose instance the land was sought to be acquired was not given notice as required under rule 3(b) of the Madras Land Acquisition Rules as in force in the Madras area of the State of Mysore at the time of inquiry under s. 5A and that since the requirement of notice as enjoined by rule 3(b) was mandatory, the failure to comply with that requirement rendered the notifications under sections 4 and 6 of the Act invalid.

<ORG> by its order upheld the contention of the respondents and quashed the notifications issued under s. 4 and s. 6 of the Act. It is against this order that the appeal has been filed by special leave by the State of Karnataka and the Special Land Acquisition officer, Mangalore.

The only point which arises for consideration is whether the pro visions of rule 3(b) were mandatory and therefore the failure to issue the notice to the department concerned as enjoined by the rule was fatal to the validity of the notifications under sections 4 and 6 of the Act.

The reasons which impelled <ORG> to come to that conclusion were, if the <ORG> to which a notice is issued files any reply by way of answer to the objections, the objector will know what the <ORG> has stated by way of reply and, at the stage Of hearing of objections, he (the objector) may adduce evidence or A address arguments to meet what has been stated in such reply, and that the objectors will have an opportunity of urging before the Government that the reasons given by the <ORG> in the reply to the objections should not be accepted.

Rule 3 reads:

"R. 3 Hearing of objection: (a) If a statement of 13 objections (is?) filed after the due date or by a person who is not interested in the land it shall be summarily rejected. (b) If any objections are received from a person interested in the land and within the time prescribed in sub section ( 1) of s 5A, the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not <ORG>; Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry." l) The learned Solicitor General, appearing on behalf of the appellants submitted that rule 3(b) is inconsistent with s. 5A(2) or tilt: reason that s. 5A(2) itself provides for making further inquiry which the Collector thinks necessary after considering the objections filed by the owner or the person interested in the land and to read rule 3(b) as casting a mandatory duty upon him to give notice of the objection to the department requiring the land and to consider the answer to the objection, if any, filed by the <ORG> would be contrary to the section. The argument was that when sub-section (2) of s. 5A provides for further inquiry in the discretion of the Collector a rule making it mandatory that the Deputy Commissioner (the Collector) should give notice of the objection to the department concerned and consider its answer to the objection would be to convert a discretionary power into a mandatory duty and is therefore ultra vires 1 the section.

We do not think that the contention is right. What the material provision of s 5A(2) says is that "the Collector shall give the objector . an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further enquiry if any as he thinks necessary". This does not mean that a rule cannot be framed by the rule-making-authority for the guidance of the Deputy Commissioner (the Collector) which would enable the <ORG> concerned to place its view- point before him when considering the objection under s. 5A . The proceedings of the Collector are quasi-judicial and it is only proper that he should be apprise of the attitude of the department requiring the land in the light of the objections filed. If the department requiring the land thinks, in the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity, it is only fair that the Deputy Commissioner (Collector) is informed about it. The answer of the department to the objection filed by the objector, even if adverse to the objector, would, at any rate, enable the Collector to bring a more informed and rational approach to the controversy before him. The Collector has to send his recommendation to government on the basis of his finding together with the record of the proceedings for the ultimate decision by the <ORG>. IT would be helpful to the <ORG> in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points. We do not think that rule 3(b) was ultra vires. the section.

We also think that the government when it framed the rule had in mind that the Deputy Commissioner (Collector) should follow it while functioning under s. 5A(2) and so the requirement of the rule was mandatory.

In determining the question whether a provision is mandatory or directory, one must look into the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law maker. And that has to he gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other. We see no reason why the rule should receive a permissible interpretation instead of a pre-emptory construction. As we said, the rule was enacted for the purpose of enabling the Deputy Commissioner (Land Acquisition Collector) to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make the proper decision. In <NAME> v.Sub-Collector of Palghat(1) <ORG> took the view that the requirement of the rule regarding the giving of notice to the department concerned was mandatory. The view of <ORG> in <CITATION> (2)is also much the same.

We think that <ORG> was right in its conclusion that the requirement of the rule was mandatory. We quash the proceedings of the Collector (Special Land Acquisition officer, 2nd appellant) under s. SA(2) as also the decision of the <ORG> on the basis of the report of the Collector under the sub-section. The result is that the notification under s. 6 has to be quashed and we do so. But We sec no reason to quash the notification under s. 4 .

We direct the Collector (2nd appellant) to proceed with the inquiry on the basis of the objection already filed under s. 5A after (1) A.I.R. 1959 Kerala 343. (2) (1967) 2 Madras law Journal 422.

giving notice to the department concerned viz., <ORG> and after allowing it an opportunity to file an answer to the objection. We dismiss the appeal subject to the modification indicated. No costs.

The facts and circumstances in Civil Appeal No. 1700 of 1973 are similar to those in Civil Appeal No. 1827 of 1973, the only difference being that the rule which falls to be considered is rule 5(2) framed by <ORG> under s. 55 of the Act. That rule is similar to rule 3(b) of the <ORG> rule. For the reasons given in the judgment in Civil Appeal No. 1827 of 1973, dismiss Civil Appeal No. 1700 of 1973 also with the modification indicated therein and without any order as to costs.

Civil Appeal No. 1021 of 1973 The facts in this appeal are similar to those in the two Civil - Appeals referred to above and the decision there will govern the decision here.

But counsel for the respondent in this appeal said that the notification under s. 4 should be quashed in respect of properties involved in this appeal for the reasons that public notice had not been given as required in s. 4 of the Act, that the report under s. 5A was not sent to the <ORG> within the prescribed period, that <ORG> failed to pass upon these questions and that the case must therefore be remitted to <ORG>.

The notification under s. 4 was published on 13- 4.1967. Objections were filed by the respondent under s. 5A of the Act. The Deputy I I Commissioner submitted his report to the <ORG>. The <ORG> over ruled the objections. The notification under s. 6 was published in the gazette on 19-10-1968. The Writ Petition challenging the validity of the notification was filed some time in July or August, 1969. We do not think that the respondent was entitled to challenge the validity of the notification under s. 4 of the Act as the Writ Petition challenging the notification was filed after an unreasonable lapse of time. If public notice as required by s. 4 of the Act was not given and that would per se vitiate the notification under s. 4 , the ' appellant should have challenged its validity within a reasonable time of the publication of the notification. The respondent knew of the notification and filed objection under <CITATION> of the Act. In these circumstances we see no reason to accept the submission of counsel. We also see no substance in the argument of the counsel that the report drawn up under s. SA(2) was not sent to the <ORG> within the time prescribed and therefore the proceedings were invalid. We have directed a fresh inquiry by the Deputy Commissioner (Collector) under s. SA and therefore, the Deputy Commissioner will in any event have to send a fresh report to the <ORG>.

In this view we do not think that there is any ground for remitting the case to <ORG>, simply because <ORG> failed to , consider these points. The appeal is dismissed with the modification; indicated in the two appeals referred to above. No costs.

P.H.P. Appeals dismissed.


PETITIONER: <ORG>, DELHI Vs. RESPONDENT: <NAME> RANJIT SINGH DATE OF JUDGMENT: 07/12/1967 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. MITTER, G.K. CITATION: 1968 AIR 933 1968 SCR (2) 548 CITATOR INFO : F 1974 SC 280 (6) R 1987 SC2055 (6) R 1989 SC1141 (19) ACT: Delhi and Ajmer Rent Control Act (38 of 1952), s. 13(1) proviso (b), (c) and (k)-Hotel premises Constituents of sub- letting-Knowledge of sub-letting, if waiver. HEADNOTE: The respondent-landlord of a hotel filed a suit for eviction of his tenant-appellant under s. 13(1) proviso (b) and (c) of the Delhi and Ajmer Rent Control Act, 1952 on the allegation that the appellant had sub-let several rooms. These occupants were doing business, which were not confined to the residents of the hotel. The occupants were given ex- clusive possession of the rooms occupied by them. The appellant did not retain any control and dominion over these rooms. It was not a condition of the grants that the keys would be left at the reception counter, or that the keys would be retained by the appellant. The occupants were at liberty to take away the keys if they liked. The occupants availed themselves of the services of the hotel sweeper for their own convenience. The appellant retained control of the corridor, but the entrance to the corridor was open day and night. The occupants paid monthly sums to the appellant as the consideration of the sub-leases. The appellanttenant denied the allegations and pleaded that the respondent- landlord had waived the breaches, if any. The suit was decreed which <ORG>, in appeal maintained HELD : The landlord was entitled to the decree for eviction. [558 B] On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is has the landlord retained control over, the apartment Normally, an occupier of an apartment in a hotel is in the position of licensee as the hotel-keeper retains the general control of the hotel including the apartment. But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant. A hotel-keeper may run a first class hotel without sub-letting any part of it. Where as in this case, the hotel-keeper retained no control over the apartment, the occupier was in the position of a tenant. The onus to prove sub-letting was on the respondent. The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration. The appellant chose not to rebut this prima facie evidence by proving and exhibiting the relevant agreements. [553 D; 554 C-D, F-H; 555 C; 556 E] Under s. 2(g) "premises" does not include " a room in a hotel or lodging house". The sub-lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under s. 13 from eviction, nor can he ask for fixation of standard rent. But, because a room in a hotel is not premises, it does not follow that the room is not a part of the hotel premises or that a sub-letting of the room is not a contravention of cls. (b) and (c) of the proviso to s. 13(1). [555 F-G 556 <CITATION> , 1 S.C.R. 368, followed. <ORG> & Anr. v. <NAME> and <NAME>.  1 QB. 513 and <NAME> v. <ORG>,  2 K.B. 335,referred to. 549 A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. Assuming that the landlord can waive the requirement as to consent, it was not shown that the respondent waived it. It is said that the respondent knew of the sub-lettings as be frequently visited the hotel up to 1953 and he must have known of the occupation of some of the occupants. But he came to know of the other lettings in 1958 only. Moreover, the precise nature of the grant was -never communicated to the respondent. [557 B-D] <NAME> v. <NAME>,  11 C.W.N. 852, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1249 of 1967.

Appeal from the judgment and decree dated July 21, 1967 of <ORG> in Regular First Appeal No. 166-D of 1965.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. This appeal arises out of a suit for ejectment instituted by a landlord against a tenant. It is common case that the suit is governed by the provisions of' the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) hereinafter referred to as the Act. The material provisions of s. 13(1) of the, Act are as follows :

"13. (1) Notwithstanding anything to the contrary contained. in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied-

(b)that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act,-

(i)sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises; or

(ii) used the premises for a purpose other than that for which they were let; or,

(c) that the tenant without obtaining the consent of the landlord has before the commencement of this Act,-

(i)sub-let, assigned or otherwise parted with the possession of, the whole or any part of the premises;, or

(ii)used the premises for a purpose other than that for which they were let; or

(k)that the tenant has, whether before or after the commencement of this Act, caused or permitted to be ,caused substantial damage to the premises, or notwithstanding previous notice has used or dealt 'with the premises in a manner contrary to any condition imposed on the landlord by the <ORG>, or <ORG> while giving him a lease of the land on which the premises are situated;" The respondent constructed the building known as the Hotel Imperial, New Delhi, on land leased to him by the Secretary of <ORG> for India in Council under a perpetual lease deed dated July 9, 1937. By a deed dated August 18, 1939, he leased to the appellant the hotel premises together with fittings and furniture for a term of 20 years commencing on September 15, 1939. On January 28, 1958, the respondent instituted the present suit alleging that in breach of the express conditions of the lease dated August .18, 1939, the appellant sub-let portions of the premises and made unauthorised additions and alterations in the premises, that on such breaches he was entitled to determine the lease and he did so, by notice in writing dated January 6, 1958. He claimed eviction of the appellant on the grounds mentioned in cls. (b), (c) and (k) of the proviso to s. 13(1) of the Act. The appellant filed its written statement on April 3, 1958 denying most of the material allegations in the plaint. The appellant also pleaded that the respondent had waived the breaches, if any, of the conditions of the lease by accepting rents with knowledge of such breaches and particularly by accepting rent on or about January 3, 1958. On April 24, 1958, <NAME>, counsel for the appellant, made the following statement before <ORG> :

"The plaintiff can seek ejectment of the defendant only under section 13 of Act 38 of 1952. In case the plaintiff succeeds in establishing the liability of, the defendant for ejectment on any of the grounds given in . section 13 of the Rent Act, the defendant would not seek any protection under the terms of the lease deed dated 18th August, 1939 executed between the parties, as regards the period of lease fixed therein. . ."

Having regard to the pleadings and statement of counsel, the <ORG> settled the following issues on May 12, 1958 : "1. Whether the defendant had sublet, assigned or otherwise parted with possession, of any part of the suit premises before the commencement of Act 38 of 1952 ?

2. If so, was the same done with express or implied consent of the plaintiff ?

3. Whether the defendant had sublet, assigned or otherwise parted with possession of any part of the suit premises after the commencement of Act 38 of 1952 ?

4.If so, was the same done with the prior consent in writing of the plaintiff ?

5.Whether the defendant has used the tenancy premises for a purpose other than that for which they were let ?

6. Whether the defendant has caused substantial damage to the tenancy premises ?

7. Whether the defendant notwithstanding previous notice has been. using and dealing with the tenancy premises in a manner contrary to the conditions imposed on the plaintiff by, the Government while giving him lease of the site of the tenancy premises ?

8. Is the defendant entitled to special cost ?

9. Whether the plaintiff is estopped or has waived his right to seek ejectment of the defendant on any of the grounds mentioned above ? If so, what and to what effect ?

10.Whether the defendant is entitled to sublet any part of the hotel premises even when there was a clause to the contra in the lease dated the 18th August, 1939. and in face of statutory provisions under the Rent Control Act (for reasons given in para 16 of the amended written statement) ?"

A tenant holding premises under a subsisting lease is pro- tected by the lease and needs no protection under the Rent Act . It was open to the appellant to contend that it was protected by the terms of the lease dated August 18, 1939, that the breaches, if any, of the conditions of the lease had been waived by the respondent and that the lease had not determined. But the appellant deliberately elected to seek protection under s. 13 of the Act only. The appellant's counsel made a' formal statement in <ORG> that the appellant would not seek any protection under the terms of the lease deed as regards the period of the lease fixed therein. The Court accordingly settled the ten issues. Issue No. 8 was not pressed. All the other issues relate to thegrounds of eviction mentioned in cls. (b), (c) and

(k) raises the question- of waiver of the respondent's right to seek ejectment on those grounds. Thus, the only questions in issue between the parties was whether the appellant was entitled to protection from eviction under s. 13 and whether any ground for eviction under the Act was made out. The case was tried and decided on this footing. We have come to this conclusion after a close examination of the 'pleadings, particulars, statement of counsel, issues and the judgment of <ORG>. No issue was raised on the question whether the breaches of the express conditions of the lease had been waived by the respondent, and whether the lease was still subsisting. The appellant sought to raise this plea in <ORG> and also in this Court Having regard to the deliberate stand taken by the appellant in <ORG>, the appellant cannot be allowed to raise the plea at a later stage. The lease determined by efflux of time on September 15, 1959. Had the appellant taken the plea that the lease had not determined by forfeiture on the date of the institution of the suit, it is possible that the respondent might have filed another suit for ejectment of the appellant immediately after September 15, 1959. Because of the stand taken by the appellant, it was not necessary for the respondent to file another suit. This appeal must be decided on the footing that the lease had determined by forfeiture on the date of the institution of the present suit. The respondent is entitled to a decree for eviction if any of the grounds mentioned in cls. (b), (c) and (k) of the proviso to s. 13(1) is made out.

<ORG> answered issue No. 5 in the negative. With regard to all the other issues, <ORG> found in favour of the respondent, and held that the grounds of eviction mentioned in cls. (b)(1), (c)(i) and (k) were proved. With regard to the ground of eviction mentioned in cl. (k), <ORG> held that the appellant was entitled to relief on certain conditions. <ORG>, however, held that the respondent was entitled to an unconditional decree, for eviction on the ground of sub- letting mentioned in cls. (b)(i) and (c)(i). The appellant preferred an, appeal to <ORG>. <ORG> agreed with all the findings of <ORG>, and dismissed the appeal.

The two <ORG>s- concurrently found that the appellant had sub-let several rooms, counters, showcases -and garages. The two <ORG>s found that the appellant had sub-let rooms to (1) <ORG>, (2) <ORG>, travel agents, (3) <ORG>, dealers in curios and jewellery, (4) <ORG>, dealers in jewellery, (5) <ORG>, hairdressers, (6) <ORG>, travel agents and (7) <ORG>, dealers in saris and curios. The businesses of the sub- lessees were not confined to the residents of the hotel. The letting to <ORG> and <ORG> were before the commencement of the Act and the lettings to <ORG>, <ORG>, and <ORG> were after the commencement of the Act. <ORG> and <ORG> were inducted as tenants after the institution of, the suit. The entrances to the rooms were in ,the main corridor of the hotel on the ground floor. The concurrent finding is that the occupants were given exclusive possession of the rooms occupied by them. The appellant did not retain any control and dominion over the rooms. It is possible that the keys of the apartments were sometimes left at the reception counter, but the evidence on this point was not convincing. It was not a condition Of the grants that the keys would be left at the reception counter, or that the duplicate keys would be retained by the appellant. The occupants were at liberty to take away the keys if they liked'. The occupants availed themselves of the services of the hotel sweeper for, their own convenience. The appellant retained control of the corridor, but it is common case before us that the entrance to the corridor was open day and night. The occupants paid monthly sums to the appellant as the consideration of the sub-leases. The consideration though described as license fee was in reality rent. The portion occupied by <ORG> has an interesting history. It was formerly sub-let to <ORG> <NAME>. <CITATION> (1), this <ORG> held by a majority on a construction of the grant to R. N. <NAME> that he was a lessee and not a licensee. <ORG> began to occupy this portion of the premises from February, 1955. According to the appellant, the agreements with <ORG>, <ORG> and <ORG>, were in writing. The appellant produced several documents in <ORG> at an early stage of the suit. The appellant's case was that these documents were the relevant agreements. According to the respondent, the documents were not genuine and the real agree-

(1) [196] 1 S.C.R. 36F meats were being withheld. The stamp auditor noted on the documents the deficiency-in stamps and penalty leviable on them on the footing that they were lease deeds. The appellant did not contest this note nor paid the penalty and deficiency as directed by the trial <ORG>. -The surprising feature of the case is that the appellant did not attempt to prove any of the documents. Where the agreement is in writing, it is a question of construction of the agreement whether the grant is a lease or a license. It was for the appellant to prove the written agreements, and the <ORG> could then construe them. The appellant has not brought before the <ORG> the best and the primary evidence of the terms on which the apartments were being occupied. The onus to prove sub-letting was on the respondent. The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration. The appellant chose not to rebut this prime facie evidence by proving and exhibiting the relevant agreements. The documents formed part of the appellant's case. The appellant bad no right to withhold them from the scrutiny of the <ORG>. In the absence of the best evidence of the grants, the <ORG>s below properly inferred sub-lettings from the other materials on the record.

The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see <ORG> and <NAME>. v. <NAME> and Ors.(1) The argument is that as the landlord is living in the premises, that fact raises the presumption that he intends to retain the control of the whole of the premises and that the occupation of the other parts is that of a lodger or inmate and not that of a tenant, and reliance was placed on <NAME> v. <ORG>) and the cases referred to therein. Those cases consider what constitute rateable occupation. In the case last cited, <ORG> said that a person who is regarded as a lodger for rating purposes need not necessarily be a lodger for the purposes of the Rent Restriction Acts, while Evershed L.J. seems to have expressed a contrary opinion. Normally, an occupier of an apartment in a hotel is in the position of a licensee as the hotel-keeper retains the general control of the hotel including the apartment. But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant. Where, as in this case, the hotel-keeper retains no control over the apart- ment, the occupier is in the position of a tenant. In Halsbury's Laws of England, Vol. 23, Art. 1028 , p. 433, the law is accurately summarised thus "A lodger who has no separate apartment is only a licensee, and, even though he has a separate apart-

(1) [1958] 1 Q.B. 513, 525.

(2) [1949] 2 K.B. 335.

ment, he has not in law an exclusive occupation, and is therefore in the position of a licensee, if the landlord retains the general control and dominion of the house, including the part occupied by the lodger; but, if in fact the landlord exercises no control over that part, the occupier is a tenant. The occupier does not, however, become a lodger merely by reason of the fact that the landlord resides on the premises and retains control of the passages and staircases and other parts used in common." On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is-has the landlord retained control over the apartment ? The fact that the apartment is a room in a hotel may lead to the inference that the hotel-keeper retains the general dominion of the en-tire hotel including the apartment and that the occupier is in the position of a lodger or inmate. But the inference is not a necessary inference of law. Where, as in this case, the best evidence of the -rant was withheld from the scrutiny of the <ORG>, the inference was rightly drawn that the occupiers were tenants.

At the hearing of this appeal, the appellant moved an appli- cation for reception of the documents as additional evidence. The genuineness of the documents was disputed by the respondent. In the Courts below, the appellant made no attempt to prove these documents. We found no ground for directing a new trial. Having regard to all these facts, we dismissed the application.

The hotel building constitutes premises within the meaning of s. 2(g) of the Act.' It is because the hotel building constitutes Premises that the appellant can claim protection from eviction under the Act. A room in a hotel is a part of the hotel premises. A sub-letting of a room in a hotel in contravention of cls. (b) and (c) of the proviso to s. 13 (1 ) is a ground for eviction under the Act. Section 2(g) provides that 'premises' does not include " a room in a hotel or lodging house." The sub-lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under s. 13 from eviction, nor can he ask for fixation of standard rent. see <CITATION> (1). If the interest of the tenant of the hotel premises is determined, the sub-tenant to whom a room in the hotel has been lawfully sublet becomes under s, 20 a direct tenant of the landlord, It may be that when the sub-tenant of a room in a hotel becomes a direct tenant under s. 20 he enjoys the protection of the Act because the room is no, longer a room in a hotel. But that point does not arise and need not be decided. Because a room in a hotel is not (1)  1 S.C.R. 368.

premises, it does not follow that the room is not a part of the hotel premises or that a sub-letting of the room is not a contravention of cls. (b) and (c) of the proviso to s. 13(1) .

The Courts below concurrently found that the sub-lettings after the commencement of the Act were made without obtaining the consent of the landlord in writing, and the sub-lettings before the commencement of the Act were made without obtaining the consent of the landlord either orally or in writing. We are not inclined to interfere with this concurrent finding.

It is said that by the lease deed dated August 18, 1939 the respondent impliedly consented to this sub-letting. Clauses 21 .and 22 of the lease are in these terms "21. That the lessee shall not be entitled to either transfer or sub-lease the premises or any part thereof to any other party without the written consent of the lessor and on such transfer, both the transferee and the lessee shall be liable for the payment of rent to the lessor and responsible to deliver,possession of the building and equipments in the same condition as when taken.

22.That the lessee will use the premises only for the purpose of running a first class hotel."

It is -,aid that for the purpose of running a first class hotel it was necessary to sub-let the apartments. It is impossible to accept the contention. A hotel-keeper may run a first class hotel without sub-letting any part of it. Clause 21-clearly provided that the lessee shall not sub- lease the hotel premises or any part thereof. In the teeth of cl. 21, it is impossible to read in cl. 22 an implied consent to sub-letting.

Reliance is placed on the correspondence passed between the Land Development Officer, New Delhi and the respondent bet- ween April 1948 and February 1949 for establishing that the respondent gave written consent to the sub-lettings. The Land and Development Officer was then complaining of the occupation of portions of the premises by <ORG> and other persons. By his letters dated November 4, 1948 and February 23, 1949, the respondent requested <ORG> to regularise the matter adding that in an first class hotels counters of air-lines and show-rooms of jewellery and curios were always provided. These letter,.; do not amount to a consent in writing to sub-lettings of portions of the hotel to the persons mentioned therein. Moreover, the consent, if any, 'was to the sub-lettings made before 1949 and not to the sub- lettings made thereafter. It is not possible to infer from these letters a general consent to all sub-lettings.

It is argued that the respondent waived the requirement of consent to the sub-letting. Any subletting in breach of the provisions of cl. (b) of the proviso to S. 13 ( 1) is an offence punish-able under s. 44 . Assuming that the landlord can waive the requirement as to consent, it is not shown that the respondent waived it. A waiver is an intentional relinquishment of a known right., There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. See <NAME> v. <NAME>). It is said that the respondent knew of the sub-lettings as he frequently visited the hotel. It appears that he visited the hotel up to 1953 and he must have known of the occupation of <NAME>, <ORG> and <ORG>. But he came to know of the other lettings in January 1958 only. Moreover, the precise nature of the grant was never communicated ,to the respondent. The Courts below rightly held that the respondent did not waive his right to evict the appellant on the ,-rounds mentioned in cls. (b) and (c) of the proviso to s. 13 (1).

We are therefore satisfied that the respondent is entitled to evict the appellant on the ground of sub-letting of the rooms. The Courts below held that the appellant had also sublet several counters, show-cases and garages to various persons. We express no opinion on the question whether there was any sub-letting of the counters, show-cases and garages. The sublettings of the rooms are sufficient grounds of eviction tinder cls. (b) and (c) of the proviso to s. 13(1) .

Clause 2(v) of the head lease granted by the <ORG> to the respondent provided that the respondent would not, without the previous consent in writing of the Chief Commissioner.. Delhi or a duly authorised officer, erect or suffer to be erected on any part of the demised premises any building other than the buildings erected there on the date of the lease. The appellant had due notice of the conditions of the head lease. Notwithstanding such previous notice, the appellant dealt with the premises in a manner contrary to the conditions imposed by cl. 2 (v). The Courts below found that contrary to this condition, the appellant made several unauthorised constructions without obtaining the requisite consent. To give one illustration, the appellant admittedly constructed a room 16 ft. 6 in X 19 ft. 6 in. with R.C.C. slab and brick masonry walls. This newly constructed room was -let to <NAME> and Co. On the ground of unauthorised construction of this room alone it must-be held that the appellant in contravention of cl. (k) of the proviso to s. 13 (1), notwithstanding previous notice, dealt with the premises in a manner contrary to (1) (1907) 11 C.W.N. 848, 852.

a condition imposed on the respondent by the <ORG> while ,giving him a lease of the land on which the premises are situated. The notice of the conditions imposed by the head lease was sufficient notice for the purposes of cl.

(k). The ground of eviction under cl. (k) was thus made out. The Courts below also held that the appellant caused substantial damage to the premises. We express no opinion on it, and this question is left open.

It follows that the respondent is entitled to evict the appellant on the grounds mentioned in cls. (b) (i), (c) (i) and (k) of the proviso to s. 13(1) .

In the result, the appeal is dismissed with costs. The execution of the decree is stayed for a period of six months from today. The appellant through Mr. <NAME> gives an undertaking that the appellant will hand over to the respondent, on the expiry of six months, vacant possession of the entire hotel premises except the portion in the possession of sub-lessees.

<ORG> dismissed.


JUDGMENT <NAME>, J.

1. The following question has been referred at the instance of the assessee :

"Whether, on the facts and in the circumstance of the case, the <ORG> was right in holding that the profit derived from the sales of import entitlements would not be entitled to relief under section 80E of the Income-tax Act, 1961 ?"

2. The assessee is a priority industry, which is entitled to a rebate under s. 80E of the I.T. Act, 1961. It manufactures forgings and stampings, which are automobile parts. In determining the income on which the rebate under s. 80E of the Act is available, the <ORG> excluded a sum of Rs. 1,70,245, being the profit on sales of import entitlements. The assessee obtained the entitlements on the basis of the export performance. The <ORG> excluded the same on the ground that this did not have any relation to the manufacturing operations of the assessee. This view was confirmed by the <ORG> and the <ORG>. Under s. 80E , in order to get the benefit of deduction, the profits and gains should be attributable to the business of manufacture or sale. The <ORG> held that in order to make profits "attributable" to the manufacturing activity, there should be some direct nexus with the profit earned and the manufacturing activity. As in the view of the <ORG>, there is no such nexus in the profit earned by sale of import entitlement, for the purpose of the relief under s. 80E the profits on sale of import entitlements had to be excluded. The Supreme Court in <CITATION> , while interpreting the words "attributable to" occurring in s. 80E , observed as follows (p. 93) :

"As regards the aspect emerging from the expression 'attributable to' occurring in the phrase profits and gains attributable to the business of' the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the legislature has deliberately used the expression 'attributable to' and not the expression 'derived from'. It cannot be disputed that the expression 'attributable to' is certainly wider in import than the expression 'derived from'. Had the expression 'derived from' been used, it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression 'derived from', as, for instance, in section 80J . In our view, since the expression of wider import namely, 'attributable to', has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity."

3. The import entitlement in this case was given to the assessee on the basis of its export of the goods manufactured by them. Certainly, therefore, the import entitlement was directly attributable to the export of goods manufactured and the business of sale of forgings and stampings. A similar question came up for consideration before <ORG> of this court in <CITATION> .) Ltd. (T.C. Nos. 451 and 452 of 1976, dated January 8, 1980)  128 ITR 531. There it was held that the amount of incentive would qualify for the relief under s. 80-I which provisions was similar to s. 80E . The export incentive, thus, being bound up with the manufacture, sale and export, the assessee is entitled to get the relief under s. 80E even in respect of these profits and gains.

4. We, accordingly, answer the reference in the negative and in favour of the assessee. The assessee will be entitled to its costs. Counsel's fee Rs. 500.


<NAME>, J.

1. In execution of a decree, a sale was held on June 24, 1922, which was confirmed on July 25, 1922.. An application to aside the sale was made and an order passed setting aside the sale on December 17, 1923- There was an appeal to the District Judge, a second appeal to <ORG>, and a Letters Patent Appeal from the judgment in second appeal. All these appeals to which the decree-holder and the auction-purchaser were parties were dismissed; the first appeal on November 12, 192t, the second appeal on February 21, 1928, and the Letters Patent Appeal on September 13, 1929. The present application was put in under Order XXI, Rule 93, by the auction-purchaser for refund of the purchase money, as the sale had been set aside. This was on August 29, 1932. The question arises whether this application, is barred by limitation, which would depend on whether, as contended by the decree holder, three years are allowed from the date of setting aside the sale or, as contended by the auction-purchaser, three years from the dismissal of the Letters Patent Appeal on September 13, 1929. The District Munsif of <ORG> held that the application was in time. Against that finding the decree-holder preferred a revision petition to this Court (C.R.P. No. 308 of 1933) and at the same time appealed to the District Judge. The District Judge transferred the appeal to the Subordinate Judge, who held that the application was barred and dismissed the application. Against that finding this appeal (C. M.S.A. No. 132. of 1934) has been preferred and this C.M.S. A. and C.R.P. No. 306 of 1933 have come on for hearing together.

2. One of the questions for decision is whether an appeal lay against the order passed under Order XXI, Rule 93, by the District Munsif ordering refund of the purchase money. On behalf of the appellant three cases have been quoted which directly bear on this question. The first is <CITATION> 3 LW 105 : 33 Iad. Cas. 235 : AIR 1917 Mad. 217 : (1916) 1 MWN 109, in which <NAME> and <NAME>, JJ. held that in an application under Order XXI, Rule 93, no appeal lay. Another case of this <ORG> referred to is <NAME> v. <NAME> 9 M 437,' which was decided similarly. In both these cases no argument was adduced and I doubt whether they are any longer good law; for, they seem to have been decided on the assumption that an auction-purchaser is a stranger to the suit and that any point that arises between him and the parties to the suit did not therefore fall within the scope of Section 47. There can be no doubt from a very large number of cases decided in this <ORG> and in other High <ORG>s that the auction-purchaser can be looked upon as a representative of a judgment-debtor or decree-holder and, further, that when there is a matter in dispute between the decree-holder and the judgment-debtor, it makes no difference that the actual application which raises the matter is made by a stranger. The third case referred to is <NAME> v. <NAME> 12 A 397 : AWN 1890, 135, which is to the same effect. There is very little discussion even in that judgment; and the many cases referred to therein show that there was a very considerable conflict of authority on this point before <NAME> v. <NAME> 12 A 397 : AWN 1890, 135, was decided. That case is certainly no longer good law in Allahabad: for a Full Bench of the Allahabad High <ORG> has given a definite finding to the contrary in <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228.

3. On the other side, there is no direct decision on this point excepting <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228, but a number of cases have been quoted in which it has been pointed out that matters in dispute between the auction purcaaser and the parties to the suit come properly under Section 47, Civil Procedure Code, it they relate to the execution, discharge, and satisfaction of the decree. <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), there was a conflict between the auction-purchaser in execution of a money decree, who was a stranger and the auction-purchaser (decree-holder) in execution of a mortgage decree. The stranger auction-purchaser contended that he was a purchaser for value without knowledge of the mortgage, whereas the decree-holder purchaser contended that the purchase was made lis pendens and was therefore not binding on him. It was- there held that the auction-purchaser was a representative of the judgment-debtor. The question whether the matter arose m execution was not decided by the <ORG>, as a definite finding that it did so arise had been given by the referring Judges. The scope of <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), was explained very fully in the judgment of <NAME>, J. in <CITATION> 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491. There, the judgment-debtor, in a separate suit, contended that the auction-purchaser had trespassed on some of his lands which had not been sold: but the <ORG> found that although the lands in question were not the subject-matter of the mortgage or of the decree and were not even sold: yet the <NAME> had by mistake actually delivered them to the auction-purchaser and that there was no trespass. It was held, following the <ORG> case, that this was a dispute in which the judgment-debtor and the decree-holder were adversely interested and that it did not matter that it was the auction-purchaser with whom the judgment-debtor was actually contending. It was therefore held that the judgment-debtor should have raised this matter in execution and that a separate suit did. not lie. <CITATION> 65 MLJ 253 : 143 Ind. Cas 854 : AIR 1933 Mad. 598 : 56 M 808 : Ind. Rul. (1933) Mad 339 : 38 LW 138 : (1933) MWN 1081, there was a sale: but before confirmation had been ordered, the decree itself was set aside in appeal. The sale was confirmed and an application was then put in to set aside the sale under Sections 47,151 and Order XXI, Rule 89. It was held that Order XXI, Rule 89, did not apply; and the same test was applied by <NAME> in this case as was applied in <CITATION> 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491, whether the judgment-debtor and the decree-holder were adversely interested in the point in dispute. It was held that they were and that therefore Section 47 did apply and the matter could be gone into in execution It is not difficult, 1 think, to distinguish these three cases from the present case-for in all three of them it was very clear that the matters in dispute did arise in execution. It is, however, argued that in the present case the dispute is one relating to the discharge and satisfaction of the decree: because if the auction purchaser succeeds, the decree would be un-satisfied; whereas if he fails the deeree-holder will have retained possession of the money and the decree will be satisfied. This seem to be the view taken in <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228. After approving the decision of the <ORG> of the Madras High <ORG> in <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), that a stranger purchaser at a <ORG> auction is entitled and bound to have any question relating to the satisfaction of the decree decided under Section 47, Civil Procedure Code, the judgment goes on to discuss the <ORG> case, Prosonno Kumar Sanyal v. Kali Das Sanyal 19 C 683 : 19 IA 166, 6 Sar. 209 (PC), in which their Lordships remarked that <ORG>s in India were right in not placing too narrow a construction on the language of Section 244 (the present Section 47). It then refers to a recent decision of the same <ORG> in <NAME> v. <NAME> 44 A 266 : 65 Ind. cas. 813 : AIR 1922 All. 200 : 20 ALJ 105, with approval. The authority of this ruling is weakened by the fact that the Judges were undoubtedly influenced by the equities of the case before them; for they say:

We are entitled to treat this application as coming within the provisions of that section. Even if we were not so satisfied, we should have been,pre-pared to grant the relief asked for on the analogy of Section 144, in exercise of our inherent power under Section 151 of the Code. There is admittedly no question outstanding between the parties except that which has been decided in this appeal, and to require the question to be now tried out in a regular suit would be merely to put the parties to unnecessary expense.

4. However, a very definite finding has been given, and it is incumbent on me to give it the very greatest respect. Apart from <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228, this question does seem to have been left in some uncertainty; but on a general examination of the current of cases, bearing on the interpretation of Section 47, there is certainly a very strong tendency to give it a wide application and to bring within its scope questions arising between the parties to the suit and the auction-purchaser. As has been pointed above, the matter now in dispute does, to some extent, relate to the discharge and satisfaction of the decree. I therefore find that an appeal and second appeal do lie.

5. When this appeal first came' up for hearing, it was admitted that the Article of the Limitation Act to be applied; was 181 but the learned Advocate for the auction-purchaser now suggests that the. appropriate Article would be 182. There is no direct authority, but the matter has been argued on the analogy of an application under Order XXI, Rule 93, Civil Procedure Code, to an application under Section 144, Civil Procedure Code, for restitution. There has been a considerable conflict of authority whether applications for restitution are governed by Article 181 or Article 182 , but the weight of authority is that they are governed by Article 181. Full Benches of the Allahabad and Patna <ORG> have said so and the question has been much discussed in Calcutta, where the same conclusion was reached.

6. However, there is authority in Madras for the position that applications under Section 144 relate to execution and that Article 182 therefore, applies. The leading Madras case is <NAME> v. Chockalingam 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 and the reason given is this:

The language of Section 583 of the old Code was not wide enough to cover all cases of benefits arising from the reversal of a decree being fully realized by the successful party. Apart from this change, we see no ground for holding that <ORG> intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code restitution was by way of execution: see <CITATION> 31 A 551 : 3 Ind. Cas 798 : 13 OC 180 : 36 IA 197 : 10 CLJ 257 : 11 Bom.LR 1200 : 6 MLT 303 : 14 CWN 55 : 19 MLJ 599 (PC). The same rule applies to similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution.

7. So that the reason why <ORG>s in Madras have followed <NAME> v. <NAME> 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 is that restitution was considered to be by way of execution under the old Code and that no change was made in the new Code. Even apart from that, it is not difficult to see that restitution does arise by way of execution: for in executing the decree of the <ORG> which reverses a decree of a lower <ORG>, account has necessarily to be taken of any changes in the positions of the parties that have taken place since the passing of the decree that has been reversed, For example, if one <ORG> states that A should hand over possession to B and he does so in execution and the Appellate <ORG> states that possession should be with A, it is in execution of the Appellate <ORG> decree that possession is given back to A by B. It is difficult to apply similar reasoning to an application under Order XXI, Rule 93. Article 182 sets out the period of limitation for the execution of a decree or order but an auction-purchaser who applies for the return of the purchase money is certainly not attempting to execute any decree or order. Order XXI. Rule 93, merely gives the auction-purchaser an equitable relief by way of returning to him the money that he has already paid into <ORG> because of some order passed under Order XXI, Rules 89 to 92, depriving him of land for which he has already paid. Were it not for the provisions of Order XXI, Rule 93, he would be driven to a separate suit. In a recent case decided in this <ORG> by <CITATION> (1931) MWN 1006 an auction-purchaser claimed restitution under Section 144 (and not under Order XXI, Rule 93) by virtue of the fact that the sale was set aside because of a successful application under Order XXI, Rule 63. <NAME>, J. held that Section 144 does not apply only to cases where a decree or order is reversed in appeal, but also where an order is made of no effect by virtue of other proceedings, so that when a claimant became successful in a suit filed under Order XXI, Rule 63, the <ORG> was empowered under Section 144 to put all the parties, including the auction-purchaser, in the same position as they would have been if the claim had been upheld in the first instance. This case is clearly distinguishable from the present one. There are no grounds for holding that Article 182 applies to an application under Order XXI, Rule 93.

8. Assuming as was originally conceded that Article 181 is the provision of the Limitation Act that governs this application, it would certainly follow from a plain reading of Article 181 that time began to run from the date of the passing of the original order setting aside the sale. It is, however, argued, on the analogy of orders passed on applications under Section 144 or for the passing of a final decree, that it is from the date of the decree of the final <ORG> confirming the decree of the first Court that time must be reckoned. That in the case of an application for a final decree time has to be reckoned from the preliminary decree of the final <ORG> has certainly been established beyond all doubt. <ORG> in <CITATION> 6 Pat 24 : 98 Ind. Cas. 499 : AIR 1926 PC 93 : 53 IA 197 : 24 ALJ 765 : (1926) MWN 591 : 44 CLJ 63 : 3 CWN 690 : 24 LW 394 : 7 PLT 575 : 31 CWN 58 : 51 MLJ 781 : 28 Bom. LR 1395 (FB) has approved the remarks made in <CITATION> 39 A 641 : 42 Ind. Cas. 93 : AIR 1917 All 163 : 15 ALJ 734 (SB) to the effect that:

The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties.

and that:

when the <ORG> passed the decree it was open to the plaintiff or the defendant to accept the decree or to appeal. If an. appeal is preferred, the final decree is the decree of <ORG> of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final between the parties.

9. Similar reasoning was adopted by this Court in <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180. If there had been no decisions on applications other than those for final decrees, the position of the appellant world have been a strong one. Another group of applications, upon which there has been considerable authority, is that of applications for restitution under Section 144 , which, in the opinion of most of <ORG>, comes within the scope of Article 181. As has already been pointed out, an application for restitution can be looked upon as one arising in execution of a decree and some Judges while holding that Article 181 applied, have nevertheless been of opinion than such an application was akin to one in execution and so held, on the analogy of Article 182 , that the <ORG> must have intended that where there were appallate decrees the decree of the final <ORG> was the decree from which time should be calculated. In view of the fact that Article 182 expressly lays down that time should be reckoned from the date of the last decree whereas Article 181 does not Bay so, it is rather difficult to argue by analogy from Article 182 to Article 181. The main current of authority on this point is undoubtedly to the effect that time does run from the date of the first decree. The matter was very fully considered by a Full Bench of <ORG> in <NAME> v. <NAME> 57 A 26 : 150 Ind. Cas. 1096 : AIR 1934 All. 626 : (1934) AIJ 503 : 7 RA 65 and the majority of the Judges found themselves unable to accept the argument that the proceedings were akin to execution proceedings and that the same principle that time should be reckoned from the date of the final <ORG> decree should be followed. <ORG> has consistently held the same view. In <NAME> v. <NAME> 11 R 275 : 149 Ind. Cas. 889 : AIR 1933 Rang. 180 : 6 R Rang.337 a contrary view was held. <CITATION> 7 Pat. 794 : 114 Ind. Cas. 476 : AIR 1928 Pat. 598 : 10 PLT 49 : Ind. Rul. (1929) Pat. 156, was there referred to and the opinion was expressed that it was difficult to see in what way an application for the passing of a final decree differed in this respect in principle from an application for restitution. If it was the operative decree of the final <ORG> that had to be taken into account in reckoning the time allowed for applying for a final decree, then for the same reason it would be the decree of the final Court of Appeal that should be taken into account in reckoning the time for restitution proceedings. Even if this reasoning is valid, it is very difficult to see how a mere application to return purchase money can be assimilated to an application for the passing of a final decree or even to one for restitution of the nature of an execution of a decree.

10. Cases dealing with certain other applications seem to me to be more analogous to the present application for a refund of purchase money. <CITATION> 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) the provision of the Limitation Act applied was Article 97 '' for money paid upon an existing consideration which afterwards fails". There the same question arose as to whether time had to be reckoned from the date of the decree of the lower Court or from the date of the decree of <ORG> which confirmed the judgment of the lower Court. Their Lordships there pointed out that as in India an original decree is not suspended by the presentation of an appeal nor is its operation interrupted when the decree on appeal is one of dismissal, and that as consideration failed at the date of the first decree, the mere fact that an appeal had been filed did not suspend the cause of action and that throughout the pendency of the proceedings in <ORG>s time was running against the plaintiff. This case is of very great importance and has been discussed in all the cases relating to applications for restitution whichever way Courts have eventually decided. It has been taken as an authority by the Allahabad and Calcutta <ORG> with regard to restitution proceedings on the ground that as the section clearly says that the period of 'limitation under Article 181 is three years from the time when the right to apply accrues, time must be calculated from the date on which the right accrued, because the cause of action is not interrupted by the subsequent filing of an appeal. <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517 a sale was set aside and money refunded to the auction-purchaser. The decree-holder appealed but the sale was confirmed. A second appeal was filed which was also dismissed. Another judgment-debtor who was not a party to the appeals then filed a suit for the return of the money which had been drawn by the auction-purchaser. The suit was filed more than three years from the date of the original decree but less than three years from the date of the appellate decree. In that case the Judges felt themselves bound by the <ORG> decision just referred to. They say that:

In construing the provisions of the Limitation Act , equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. In this view we are of opinion that the right to apply accrued as soon as the order of the District Judge was made in August 1925, confirming the sale and that as the present application was not made within three years from that date, it has been rightly held that the application was barred by limitation.

11. No doubt in that case the plaintiff was on a specially weak ground as he had not been a party to the appeals; and this was pointed out in the judgment in this case as being an a fortiori reason for dismissing the suit. There can be no doubt, however, that the case would have been decided against the plaintiff even if those special considerations had not existed. <CITATION> 28 C. 113 an ex parte decree was passed and execution took place. The ex parte decree was subsequently set aside and the judgment-debtor applied for a return of the money realized in execution. There, too, it was held that three years should be calculated from the date of setting aside the ex parte decree. <CITATION> 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 it was found that a vendor had no saleable interest. That decree was appealed against but dismissed. A suit was then brought for damages for breach of covenant of title by the vendee and it was held, distinguishing <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 which contained an obiter to the effect that Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) had no application to Article 182 and that it would be strange if the basis for calculating the limitation under Article 181 differed from that under Article 182 , that time began to run, from the date of the first decree and not from the date of the appellate decree: Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) was there followed. The reason for distinguishing <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 was that applications under Section 144 were of the nature of applications in execution. Although none of the cases immediately referred to above Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 ( <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517, <CITATION> 28 C 113 and <CITATION> 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 deals with precisely the point raised in this application, yet it seems that the same principles have to be applied in this case as in those just quoted. The present application was a simple one under Order XXI, Rule 93, for the return of money and the right to make that application accrued immediately the order setting aside the sale was made. As the cause of, action was not suspended by the filing of the second appeal and <ORG>, time went on running against the appellant throughout the conduct of those proceedings. As pointed out in <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517. <ORG>s are not entitled to import equitable considerations when the <ORG> has made it clear what time should be allowed for filing applications. I, therefore, hold that the present application was out of time. I must mention before concluding a direct decision in favour of the appellant in <NAME> v. Sital Prasad 11 A 372 : AWN 1889,113. That decision was by a Single Judge. It is moreover, a very old one, and it was decided on purely equitable considerations. It seems never to have been quoted or cited before any other <ORG> and its authority at present must be very little.

12. An alternative argument has been put forward on behalf of the appellant that as he joined with the decree-holder in preferring the appeals, he could not at the same time apply for a refund of the purchase money and that it could not be said that the right accrued to the applicant in pursuing the strictly alternative relief to have the sale upheld. The learned Subordinate Judge in appeal disposed of this argument very summarily by saying that he was unable to follow the reasoning and that if the appellant chose to take the matter in appeal, it was his own fault and he did so at his own risk. I quite agree with. what the learned Subordinate Judge has said. The appellant had two remedies and there was no reason why he should not have adopted both at the same time, one being kept pending until the other was disposed of. He had a choice and must accept the consequences of having made the wrong one. In result the appeal is dismissed with costs.

13. The Civil Revision Petition was unnecessary and is dismissed without costs. (Leave granted).