JUDGMENT Knox, Actg. C.J. and Banerji, J.
1. In the suit out of which this second appeal arises a claim was made for pre-emption over a share in an undivided zamindari mahal. Both of the Courts below held that the right sued for had become barred by limitation, and the question which we have to consider is whether that claim was or was not so barred.
2. The facts, which are undisputed, are briefly as follows:
One Kamaruddin made a mortgage by way of conditional sale on the 20th of September 1877, in favour of one Sardar Khan. Sardar Khan brought a suit and obtained a decree for foreclosure under Section 86 of the Transfer of Property Act. The conditional decree granted to him is dated the 12th of May 1884, and it fixed a period of six months, as required by that section, for payment. That date expired on the 12th of November 1884. Payment was not made, but the mortgagee took no steps for obtaining an order absolute under Section 87 until the 19th of June 1890. The plaint in the present suit for pre-emption bears date the 17th of April 1893. The Courts below held that the right to pre-empt accrued from the 12th of November 1884, and they accordingly held that the suit was barred. In a recent Full Bench judgment of this Court Batul Begam v. Mansur Ali Khan I.L.R. 20 All. 315, has been held, affirming a previous Full Bench, that a share in an undivided zamindari mahal is not susceptible of physical possession in the sense of Article 10 of Schedule II of Act No. XV of 1877, and further that the period of limitation for pre-emption in such cases is governed by Article 120, which provides a period of six years. A second question, however, remains to be decided, and that is whether the date from which the right to pre-empt accrues runs from the conditional order made in the suit for foreclosure under Section 86 or from the expiry of the six months of grace granted under the same section or again from the date of the order absolute passed under Section 87 of the same Act. In Second Appeal No. 1014 of 1896 decided by me on the 5th April 1898 I.L.R. 20 All. 358, I held that the right to preempt accrued, not from the date fixed in the decree under Section 86 as the date on which the payment is to be made by the mortgagor, but from the date on which the mortgagee obtained the order absolute under Section 87 of the Transfer of Property Act, 1882. My reasons for the view I took are fully set out in that judgment, and I need say no more here than that I still adhere to the view I then took. The learned advocate for the respondent argued that the date should be calculated from the time on which the mortgagor having failed to make payment within the time of grace would find any application made by him for further grace barred, namely, three years from the expiry of the period of grace. This point did not arise in Second Appeal No. 1014 of 1896. It has been considered by the High Court of Calcutta in the case of Poresh Nath Mojumdar v. Bamjodu Mojumdar I.L.R. 16 Cal. 246. It was there held, and I agree with the view there taken, that the mortgagor could redeem at any time until the order absolute under Section 89 was made; in other words, that his right to redeem was not extinguished until such order was made. I am therefore of opinion that the view taken by the Court below was erroneous, and as that Court decided in error on a preliminary point I would set aside its decree and remand the suit to the Court of First Instance under seotion 562 of the Code of Civil Procedure.
Banerji, J.
3. I am of the same opinion. Two questions arise in this appeal. The first is as to the period of limitation applicable to a suit of this nature; the second is as to the date from which limitation should be computed. The first question is concluded by the recent ruling of the Full Bench to which the learned Chief Justice has referred. The property being a share in an undivided zamindari mahal is not capable of physical possession: therefore Article 10 of the second schedule of the Limitation Act is not applicable. There being no other specific article which can govern the suit, the only article which can apply would be Article 120, which prescribes a limitation of six years.
4. As regards the second question, I also agree in holding that limitation should be computed from the date on which the order absolute for foreclosure was made under Section 87 of the Transfer of Property Act. So long as the right of the mortgagor to redeem has not become extinct the mortgaged property does not vest absolutely in the conditional vendee. Section 87 provides that if payment is not made within the time fixed in the decree passed under Section 86, the plaintiff mortgagee may apply for an order that the mortgagor should be debarred absolutely of his right to redeem, and it further provides that on the passing of such order the debt secured by the mortgage shall be discharged. These provisions clearly show that so long as an order is not passed under that Section the mortgagor's right to redeem and the mortgage debt do not come to an end. Consequently it is only on the passing of au order under Section 87 that the mortgagee, conditional vendee, becomes the absolute vendee of the mortgaged property. That being so, a right to claim pre-emption in respect of a sale which has thus become absolute can only arise on the date of the order absolute for foreclosure made under Section 87. The date from which limitation should he computed cannot be held to be the date on which the conditional vendee might have made his application for an order under Section 87, because, as I have said, until the conditional vendee obtains his order under Section 87 he continues to be the mortgagee, and it is only when he ceases to be the mortgagee and acquires the absolute right of the mortgagor that a claim for pre-emption can be preferred in respect of the transaction.
5. For these reasons I agree in holding that the plaintiff's claim was not barred, and that the Courts below have erred in holding it to be so. I also agree in the order proposed by my learned colleague.
6. The order of the Court is that the decrees of the Courts below are set aside, and the case is remanded to the Court of First Instance with directions to readmit it under its original number in the register and to proceed to determine the suit on its merits. The appellant will recover the costs of this appeal, and the costs hitherto incurred in the Courts below will abide the event.