John Beaumont, Kt., C.J.
1. This is a second appeal from a decision of the Assistant Judge of Satara raising a point of practice which has given rise to some difference of opinion amongst the High Courts. So far as respondents Nos. 2 and 6 are concerned, they have died and their heirs have not been brought on the record. Therefore, as against them, the appeal abates, and our decision does not affect them. Mr. Koyajee, who appeared for the heirs of respondent No. 6, admits that as his clients are not on the record he has no locus standi, but he has been good enough to assist us in the capacity of amicus curice by arguing against the appellant.
2. The point which arises for decision is whether the applicant, having obtained an order for possession under Order XXI, Rule 35, which has been obstructed, and having raised no objection to the obstruction within thirty days, is at liberty to apply for a fresh order for possession.
3. The facts giving rise to the application are these.
4. In March 1925 the applicant obtained a decree for possession of an immoveable property, On June 24, 1925, there was an application for a darkhast, and a warrant for possession was given. On October 29, 1926, the warrant was returned on the ground that possession was obstructed, and on January 21, 1927, the darkhast was struck off the file. In March 1927 there was a fresh darkhast, which, on July 5, was dismissed for default. Then, on July 6, 1927, the present application for a darkhast was filed against the judgment-debtor. The lower Courts have held that the application does not lie, because the applicant did not take any steps under the previous darkhast.
5. Now, Order XXI, Rule 35(1) provides:-
Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person hound by the decree who refuses to vacate the property.
The form of warrant which is issued under that rule is Form No. 11 in Appendix E. It is addressed to the bailiff of the Court, recites that property in the occupancy of so and so has been decreed to the plaintiff, and then directs the bailiff to put the plaintiff in possession and to remove any person bound by the decree who refuses to vacate. Rule 97 of Order XXI deals with the case of obstruction to possession. Sub-rule (1) of that rule provides:-
Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
Then Article 167 of the Indian Limitation Act provides that any such application must be made within thirty days from the date of the resistance or obstruction.
6. The question for our decision is, whether, an application complaining of an obstruction not having been made within thirty days, the judgment-creditor is barred from making a fresh application for a writ of possession under Rule 35 and is limited to the remedy of filing a suit. It is stated in Sir Dinshah Mulla's Civil Procedure Code, 9th Edition, p. 773, that the High Courts of Madras and Patna have held that a fresh application for delivery of possession on a fresh warrant may be applied for, and that the High Courts of Bombay and Allahabad have held that such an application cannot be made, and that the only remedy is a suit.
7. Looking at the words of Rule 97, it is clear that it is permissive in character. The party obstructed is not bound to make an application to get the obstruction removed by the summary process laid down in the rule succeeding Rule 97, though, if he does make such an application, he must make it within the thirty days laid down by Art, 167. But it seems to me clear that there may be more than one obstruction, and the fact that the decree-holder has chosen to make no application under the summary process in respect of the first obstruction would not debar him from making such an application in respect of a second obstruction. The first obstruction might be by a stranger and the decree-holder might consider that any application to remove such stranger summarily would probably fail, having regard to Rule 99. But then that stranger might go out of possession, and there might be a subsequent obstruction by the judgment-debtor in respect of which the decree-holder might desire to take summary proceedings. In my opinion the decree-holder would have an additional thirty days from the date of that second obstruction within which to make his application, and the fact that he bad failed to make an application in respect of a previous obstruction would be immaterial. If the decree-holder is to be entitled to make an application in respect of a second obstruction, it seems to me that he must be entitled, in order to put himself into a position to make such an application, to obtain a fresh warrant for possession under Rule 35. There is nothing in Rule 35 which requires an application under that rule to be within thirty days from the obstruction, since Article 167 plainly has no reference to an application under Rule 35. That being so, looking at the matter apart from authority, it seems to me that the lower Courts were wrong in saying that this application does not lie. All that the applicant is asking at the moment is that a fresh warrant for possession may issue under Rule 85, and to that, I think, he is entitled. That really dsiposes of the appeal, because we are not dealing today with the rights which may accrue under that fresh warrant. But, as the whole question has been argued, and as the rights accruing under the warrant will arise for decision at a later stage of these proceedings, it is, I think, desirable that we should indicate our opinion upon the point. If under the fresh warrant possession is obstructed and the decree-holder then applies under Rule 97 complaining of the obstruction, and if the execution Judge then starts an enquiry under Rule 98, in my opinion, it will be open to the party obstructing to show that his obstruction is by the same person and in the same character as the former obstruction in respect of which no proceedings were taken, and if he succeeds in proving that, Article 167 will then be a bar to the decree-holder's application. The mere fact that the application is made in respect of a fresh warrant for possession does not, in my view, involve that the obstruction is a fresh obstruction.
8. Mr. Gajendragadkar on behalf of the appellant has referred us to all the cases on this subject. The decision of this Court in Vinayakrav Amrit v. Devrao Govind I.L.R. (1887) Bom. 473 a decision which both the lower Courts felt themselves bound to follow, was given in revision, and on that ground can be distinguished from the present case. But the learned Chief Justice did there, as it seems to me, express the view that if no objection had been made to an obstruction under the section of the Code, which then corresponded to Rule 97, it would not be permissible for the decree-holder to apply for a fresh order for possession because that would render Article 167, in effect, a dead letter. For the reasons which I have given, I do not think that view is correct. It seems to me that Article 167 has nothing to do with an application for a warrant for possession under Rule 35, and that the Article would still be applicable, notwithstanding the fresh order for possession, to a subsequent application in respect of the same obstruction.
9. The division bench of the High Court of Allahabad in Kesri Narain v. Abdul Hasan I.L.R. (1904) All. 365 and a bench of the Calcutta High Court in Shoteenath Mookerjee v. Obhoy Nund Roy I.L.R. (1879) Cal. 331 agreed with the decision of the Bombay High Court. But the case in Kesri Narain v. Abdul Hasan is rather weakened by the fact that Mr. Justice Knox, one of the Judges, expressed himself as still agreeing with the decision in Narain Das v. Hazari Lal I.L.R. (1895) All. 233 to which he had been a party, and which appears to me to conflict certainly in its reasoning with the later decision in Kesri Narain v. Abdul Hasan.
10. On the other hand, a different view was taken by the Patna High Court in a case in which all the authorities are reviewed, Raghunandan Prasad Misra v. Bam Charan Manda (1918) 4 P.L.J. 94 and this case followed a decision of the Madras High Court in Muttia v. Appasami I.L.R. (1890) Mad. 504
11. The balance of authority, as the learned Judges of the Patna High Court say, is rather in favour of the view which I am taking that a fresh application for an order for possession can be made in the circumstances of this case. With regard to the case in Narain Das v. Hazari Lal, the learned Judges there expressed the view that if a fresh application complaining of obstruction were made under Rule 97 under a fresh warrant of possession, the mere fact that the application was made in respect of a fresh warrant for possession would involve that the application was in respect of a fresh obstruction. I am not myself disposed to agree with that view. I think that if in fact the obstruction is by the same person and in the same character, the mere fact that the decree-holder is applying under a fresh warrant of possession would not make the obstruction a fresh obstruction.
12. For these reasons, I think that the decisions of the lower Courts were wrong, and that the appeal must be allowed with costs as against the party served.
13. I agree.
14. I agree. I am of opinion that the lower Courts were wrong in holding that the darkhast was untenable and barred in limine. The case they profess to follow, Vinayakrav Amrit v. Devrao Govind I.L.R. (1887) Bom. 473 does not, in my opinion, really decide that. On the facts of that case it was held that the decree-holder's application Was virtually an attempt to renew the old proceedings, i.e., it was a case of the continuance of an obstruction which might have been, but had not been, dealt with by an application under the rule corresponding to Rule 97 of Order XXI.
15. The suggestion was made that the obstruction was a fresh one and as to that the Court said this (p. 475)-
It has, however, been stated before us that the original obstruction was by a third parson, and that the present obstruction is by the judgment-debtor himself. No point was made of this before the Subordinate Judge. But assuming it to be the case, and that the present obstructor does not claim in any way through the third person who was in possession in 1877, which, however, is denied by the vakil for the opponent, it may be that, as three years have not elapsed since the applicant cams of age, summary proceedings might bo taken, under the Civil Procedure Code, to remove such an obstruction notwithstanding what occurred in 1877.
The reference to three years' limitation seems to show that the learned Judges thought that in the case of an obstruction by a different person, at any rate if that person is the judgment-debtor, a fresh darkhast followed by a fresh summary application is permissible. The question of the bar of limitation under Article 167 can only arise, in my opinion, if and when the darkhastdar having got his writ of possession makes a fresh application under Rule 97, and I agree with the learned Chief Justice in holding that that question must depend on whether the obstruction now offered is an obstruction by a different person, or an obstruction by the same person in different circumstances, that is a fresh obstruction, or whether it is merely a continuance of the same obstruction.