Judgment :- 1. The respondents instituted the suit out of which this second appeal arises against the appellant, for refund of part of the consideration which they paid to him under a deed of transfer, Ext, A-1 dated the 14th September, 1949, by which the appellant professed to convey to them the full and absolute rights in a property. Subsequently, by a decree for partition obtained by the appellant's brothers, the respondents were held to have obtained title to the property only to the extent of the appellant's one-third share. The decree for partition was passed by the court of first instance on the 28th August, 1953, and was confirmed by the appellate court on the 24th November, 1955. The present suit was instituted on the 15th January, 1958, that is, more than three years after the decree for partition passed by the primary court, but well within three years of the decree of the appellate court. The appellant contended inter alia, that the suit was barred by limitation, and it is this contention alone that was pressed in second appeal. The contention was repelled by the first court which held that under Art.97 of the Indian Limitation Act, time commenced to run from the date of the appellate decree. In appeal, the point of limitation does not appear to have been argued and it was dismissed on the merits. 2. In second appeal, learned counsel contended, that the date of the decree of the primary court and not that of the decree of the appellate court, must be regarded as the starting point under column 3 of Art.97 and relied on Juscurn Bold v. Pirthichand Lal Choudhury ILR. 46 Calcutta 670 in which the Privy Council, observing that "under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal", held that the decree of the primary court furnished the starting point. The decision is authority for holding, that time must be reckoned from the date of the decree of the primary court, and so done, the suit was out of time. 3. The decision is authority for holding, that time must be reckoned from the date of the decree of the primary court, and so done, the suit was out of time. 3. It was also averred in the plaint, that the respondents lost possession of 2/3 share of the property pursuant to the decree for partition on the 16th January, 1957, and in Para.7 of the plaint this was relied on, as one of the dates on which the cause of action accrued. In answer, learned counsel relied on the following observations of the Privy Council in the case cited: "There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period should run, but that is not the case here. The quality of the possession acquired by the present purchaser excludes the idea that the starting point is to be sought in a disturbance of possession or in any event other than the challenge to the sale and the negation of the purchaser's title to the entirety of what he bought involved in the decree...", and contended, that in this case too, the date of the loss of possession of the 2/3 share by the respondents is not the starting point. These observations have no relevance to the present case, because the respondents having got possession of the 2/3 share also from the appellant, the loss of such possession constituted the gravest injury to them. The respondents having continued to be in possession even after the decree, it is difficult to imagine, that when they lost possession of 2/3 of the property, they acquired no cause of action on which to found a suit for refund of the proportionate consideration. The case before the Privy Council was entirely different. For arrears of rent due from the patnidars, the zemindar brought the patni taluq to sale, when a stranger purchased it. Delivery of possession was taken by the purchaser not from the zemindar who had no possession and who did not convey any, but from the darpatnidars who were in possession, apparently because of the peculiar features of a patni sale. On the darpatnidars suing successfully for the cancellation of the sale, the purchaser relinquished possession to the darpatnidars. Delivery of possession was taken by the purchaser not from the zemindar who had no possession and who did not convey any, but from the darpatnidars who were in possession, apparently because of the peculiar features of a patni sale. On the darpatnidars suing successfully for the cancellation of the sale, the purchaser relinquished possession to the darpatnidars. Before the Privy Council, De Gruyther, K.C. argued thus, as seen from the summary of the arguments in the report: "No cause of action against the zemindar could be founded upon the appellant's giving up possession. With the darpatnidar the zemindar had nothing to do. The right to possession was in the patnidar, not in the zemindar, who could not give possession under the sale. Immediately on the sale being set aside by the District Judge on 24th August 1905 the appellant was entitled to have the purchase-money and the other payments he made as purchaser repaid to him, and he could have brought this suit at once even if an appeal was pending from the decision." The Privy Council accepted this line of reasoning of learned counsel and made the observations which have been extracted above. The appellant before the Privy Council, having derived no possession from the zemindar, whom he sued for refund of the price, the relinquishment of possession to the darpatindars, afforded no cause of action. That is not the case here. 4. On the contrary, there is a line of cases which have held, that the disturbance or loss of possession does constitute a starting point for limitation under Art.97. It is unnecessary to deal with them and it is sufficient to extract the following summary of the law made by Rustomji in his work on Limitation, 1958 edition at page 557: "When under a sale which is void ab initio possession is delivered to the vendee, who is subsequently ejected by the true owner, the vendee's suit against the vendor to recover back the purchase-money is within Art.97 (and not 62), inasmuch as possession given under a purchase is an existing consideration so long as such possession lasts. In such a case not even a declaration of invalidity or avoidance by decree of court will set limitation (under Art.97) running so long as the vendee is in possession" It seems to me, that so long as the respondents continued to be in possession of the property despite the decrees passed in the partition suit, there was an existing consideration, which could be deemed to have failed within the meaning of Art.97 upon the loss of such possession by delivery thereof to the appellants. 5. It is no doubt true, that the plea of limitation was overruled by the first court on a different and unsustainable ground, but that does not matter. The suit was rightly held to be within time and this second appeal is dismissed with costs. Dismissed.