JUDGMENT
1. In this ease the appellant applied under Section 173, Sub-section (3), of the Bengal Tenancy Act to set aside a sale in execution of a decree held on the 10th September 1907, alleging that the purchaser in that sale was a benamdar on behalf of the judgment-debtor. The sale was, as we have said, made on the 10th September 1907. It was subsequently set aside on the 17th September. On the matter coming before the High Court the order setting aside the sale was itself set aside on the 23rd July 1908. The sale was thus restored to validity on that date. Subsequently the judgment-debtor, by proceedings instituted on the 10th of August 1908, sought to have the sale set aside by an application which was subsequently withdrawn. The result of this proceeding and of the non-payment of the amount of the purchase-money was that the sale was not confirmed till the 28th August 1909. The decree-holder made the present application within three years of August 1909, but after three years from the 23rd of July 1908. The question is whether his application was time-barred under Article 181 of the Limitation Act, The two lower Courts have held that it was, because, he could have made his application when the sale was restored to validity by the order of the High Court. In our opinion they have decided rightly. On the present occasion it is argued before us that the right to sue did not arise until the sale was confirmed. We cannot take this view. It was founded on the fact that under the provisions of Section 316 of the old Code of Civil Procedure, by which this case is governed, the title in the premises sold did not pass to the auction-purchaser until the confirmation of the sale. No authority has, however, been shown for the application of this provision to a case like the present, which we take to be contrary to the general practice of this Court. It is also said that the right of the present appellant to bring this application was suspended by the application made by the judgment-debtor on the 10th August 1908. This, in the first place overlooks the fact, that there was a time between the 23rd July and the 10th of August when the present appellant might have made his application : but apart from that the action of the judgment-debtor could in no way act as a stay of the decree-holder’s proceedings to make an entirely different application from the one which the judgment-debtor was making. We hold, therefore, that the lower Courts were right in finding that the limitation ran against the appellant from the 23rd of July 1908. The result is that in that point of view he is out of time. He has, however, put his case in another way. He says that he is a person other than the decree-holder who is interested in the sale and, therefore, entitled as such a person to make an application under Section 173 of the Bengal Tenancy Act, and if he is entitled to make that application, he maintains under the circumstances of the case, that his right accrued from the 11th December 1909. If he is an other person” within the meaning of Section 173 this may be so. There was another sale in respect of another decree obtained by the decree-holder in this case. This was an earlier decree which gave rise to a later order for sale, and under this later order for sale which was on the 17th September 1907, Rs. 9,000 found its way into the pocket of the decree-holder. This order was set aside and the appellant had consequently to refund the sum of Rs. 9,000. We, however, cannot shut our eyes to the fact which is abundantly proved throughout the whole of this case that the decree-holder in both cases had taken execution proceedings against the same property. He is therefore, not an “other person ” and oh this point he must fail.
2. The appeal is, therefore, dismissed but as the law of limitation has told on the appellant with more severity an his negligence deserved, we make no order as to costs.
