Mookerjee JUDGMENT
H. Walmsley, J.
1. The plaintiffs prefer this appeal. The facts are as follows: Their predecessors bought certain property in execution of a mortgage-decree on 6th May 1913, but the sale was not confirmed until 28th January 1914 when the judgment-debtor's application to have the sale set aside was rejected. In the interval between the decree and the sale, the mortgagor executed usufructuary mortgages in favour of the defendants, and the latter realized rents from the tenants. The suit was brought to recover the sums realized by the defendant as rent for the Baisakh and Bhadra kists of 1320 Fasli which fell due after the date of plaintiffs' purchase. It was instituted on 16th September 1916.
2. The question of plaintiffs right to recover has been finally determined in their favour. It is also settled that Article 109 of the Limitation Act is the Article applicable to the case.
3. The learned Judge, after remand, has found that some items were realized within three years of the suit, and he has awarded the plaintiffs a decree for those amounts, but he has dismissed the claim in regard to other items on the ground that they were received more than three years before the institution of the suit. The appeal is in regard to the sums which have been disallowed.
4. The starting point of limitation is the time when the amounts were received, and the learned Judge's decision is correct, unless we admit the proposition urged on plaintiffs' behalf that the judgment-debtor's application to set aside the sale prevented the period of limitation from is starting. The learned Vakil says that the plaintiffs had only an inchoate right until the application was rejected and the sale confirmed, and that during this period they could not institute a suit and that, therefore, they are entitled to the benefit of the equitable principle adopted in the case of Ranee Surno Moyee v. Shoshee Mookhee Burmonia 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J : 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. (N.S.) 489. That is the decision to which later decisions refer, and I think it is well to point out that the facts of this case are entirely different from those of that case. In Ranee Surno Moyee's case 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J : 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. 489 the plaintiff was in the position of a satisfied creditor until the patni sale was set aside: there was no rent left outstanding for which she could bring a suit, but when the sale was set aside, and the zemindar recouped the auction-purchaser and the latter re-paid to the patnidar the mesne profits of the period of his possession, it was manifestly unjust that the patnidar should escape from his liability to pay rent. In the present case there has not been any such change of position. The issue that hung in the balance while the judgment-debtor's application was pending was whether the plaintiffs had no right at all or whether their inchoate right should be perfected. During that period. I think they might have instituted a suit: they could not have obtained a decree without the sale certificate, but the absence of the sale certificate would not have been reason for dismissing the suit. I do not, however, wish to rest my decision on that ground. Assuming that for about four months of the three years the plaintiffs were unable to sue, I do not think that they can demand that on that account the principle which I have mentioned should be extended to their case. Firstly, the terms of the Limitation Act are clear and definite, and there is no clause in the Act to which the plaintiffs can refer. Secondly, the principle which they invoke was enunicated for very different circumstances. I am aware that it has been extended, but it cannot be extended to this case unless we lay down that Article 109 is subject to considerable ........