1. This second appeal arises out of a suit instituted by the appellants under Order 21, Rule 103 of the Code of Civil Procedure. The relevant facts are as follows: The appellants instituted a suit against two persons Moreshwar and his brother Madhao for the recovery of money. That suit was civil suit No. 16/32. Ultimately, a consent decree was passed thereon 2-12-1932. In accordance with the terms of that decree, the amount was payable in instalments and for the recovery of that amount, a charge was created over certain property belonging to the two brothers, including a house situate in Circle No. 9/11 in Nagpur. This decree was, eventually registered on 7-8-1933.
2. One Gangabai had obtained a money decree against Moreshwar and Madhao in civil suit No. 1478/34. In execution of that decree, she attached the house aforesaid and put it to sale through pondent for Rs. 400/- on 6.10.1943 and the respondent was placed in possession of the house on 25-2-1944.
3. During this period, the appellants were also taking steps to realise their charge. In those proceedings the respondent put in an objection to the sale of the house but his objection was summarily rejected on 3-12-1943. He therefore instituted a suit for a declaration of his rights against the appellants but withdrew that suit on 29-7-1944 without obtaining liberty to bring a fresh suit on the same cause of action. While this suit was pending,t he house in question was sold for realisation of the charge in favour of the appellants and was purchased by them on 2-3-1944. The sale was confirmed in their favour and a sale certificate was granted to them on 13-10-1944.
4. In pursuance of the aforesaid sale certificate, the appellants applied under Order 21, Rule 95 of the Code for delivery of possession. The application in that regard was made on 15-4-1946 and a warrant for possession was issued. The execution of the warrant was, however, resisted by the respondent on 17-10-1946. The appellants did not make an application under Order 21, Rule 97 within 30 days of the date of resistance, but instead applied for a fresh warrant of possession. Such a warrant was issued in their favour and they attempted to execute it. They were again resisted by the respondent from obtaining possession on 10-4-1947. Thereafter they made an application under Order 21, Rule 97 on 21-4-47. This application was dismissed by the executing Court on 15-12-1947 on two grounds; one ground was that the application was barred by time as it had not been made within 30 days of the initial resistance to the taking of possession made by the respondent on 17-10-1946. The other ground was that the respondent was not the judgment-debtor of the appellants, Thereupon,the appellants preferred on appeal to the High Court at Nagpur. That appeal was dismissed by V.R. Sen J. on 14-3-1951, and the ground on which he dismissed the appeal wee the same which were given by the executing Court.
5. During the pendency of the appeal, which the appellants had instituted to challenge the order of the executing Court under Order 21, Rule 103, they instituted the present suit for a declaration in which they have sought a declaration to the effect that the respondent was not entitled to resist delivery of possession on the ground that they had purchased the property in execution of a charge decree. The suit was resisted by the respondent on various grounds and was dismissed by the trial Court. An appeal was then preferred by the appellants against the decision of the trial Court, but that appeal was also dismissed.
6. What is contended before me on behalf of the respondent by Shri Tare is that a suit of this kind is barred both by limitation as well as by virtue of the provisions of Sec. 47 of the Code of Civil Procedure. According to him, the proper course for the appellants would have been to make an application under Order 21, Rule 97 within 30 days of the initial resistance to possession made by the respondent and that they having failed to do so were not entitled to bring a suit more than one year after the first obstruction. As regards the second ground his contention is that by reason of the execution purchase the respondent stepped into the shoes of Moreshwar and Madhao and thus became a representative of those who persons and that consequently he could be regarded as a party to the litigation. For this reason he contends that the only remedy which the appellants had was to proceed against him in execution and not by way of a separate suit.
7. I shall deal with the second point first. Shri Tare has relied upon a number of cases in support of his contention that a purchaser of a judgment-debtor's interest in immovable property at an execution sale is deemed to be his representative and that as such he must be regarded as a party within the meaning of that expression as used in Sec. 47 of the Code. It is however not necessary for me to consider any of these cases for one simple reason, and that reason is, that the stand taken by the respondent in the proceedings under Order 21 Rule 97 throughout was the he was not the judgment-debtor or a representative of the original judgment debtors and that therefore, the executing court could not proceed against him under Rule 98. This stand was reiterated by him in the appeal before this court. As I have already stated, one of the grounds on which the application of the appellants under Order 21, Rule 97 was dismissed was that the respondent was not a judgment-debtor or a representative of the judgment-debtor. That was also one of the grounds on which the appeal before the High Court was dismissed. that being the position, it seems to me that it is not open to the respondent to contend now that he was in fact a representative of the judgment-debtors, and as such the only remedy open to the appellants lay in execution.
8. To my mind, this is nothing but approbation and reprobation and therefore the respondent ought not to be allowed to contend now something just opposite of what he had contended before the executing Court and before the High Court, and actually succeeded in his object by defeating the appellant's application and his appeal on the basis of that contention. If authority were needed for this very obvious proposition I may refer to the decision of Kinkhede A.J.C. in Uttamchand v. Saligram . There the learned Additional Judicial Commissioner observed:
'I think the Additional District Judge was right in holding that the defendant could not take up inconsistent position and urge the defence of bar of Section 47, Civil Procedure Code, as when the plaintiffs came in under that section he successfully maintained that the section did not apply and the remedy was by regular suit. The defendant cannot blow hot and cold in the same breath as it were.'
I respectfully agree with the learned Additional Judicial Commissioner and hold that whatever may be the time character of the respondent's right it is no longer open to him to contend that the proper remedy of the appellants was by way of a proceeding in execution. Indeed, I may also point out that in his pleadings in this very suit he has stated in paragraph 7:
'It is denied that the order dated 15-12-1947 is an order under Section 47 C. P. Code. As an appeal, M.A. No. 64/68 in the High Court is infructuous.'
Having taken this stand in his written statement, it is surprising that his learned counsel should have thought it fit to raise an opposite contention in argument before me.
9. Now, as regards the other point. The argument is that the duty of the appellants was to prefer an application within 30 days of the initial obstruction and that since they did not avail themselves of that remedy within the time allowed by Art. 167 of the Limitation Act, It was not open to them to file a suit under Order 21, Rule 130, more than one year after the date of that obstruction.
10. No authority is cited in support of this contention. But on examining this argument on principle it seems to me that it is not well-founded. No doubt, Order 21, Rule 97 does afford an opportunity to a decree-holder to make an application thereunder within 30 days of the obstruction to the delivery of possession made by the person is possession of the property; but Article 167 of the Limitation Act provides that this remedy is to be availed of within 30 days and that it cannot be availed of beyond that period. but as has been held in numerous that period. But as has been held in numerous cases, including one of this court in Mukund Bapu v. Tanuy Sakhu, AIR 1933 Bom 457, the provisions of Order 21, Rule 97 are permissive and that a decree-holder is not bound to resort to those provisions even though he may have been obstructed in obtaining possession of the property in execution of a warrant for delivery of possession. This case is also an authority for the proposition that even though a decree-holder may have failed to obtain possession under a warrant originally issued by the executing Court, he has a right without having proceeded under Order 21, Rule 97, to obtain a fresh warrant for delivery of possession. No doubt, this Court has also held that if the resistance to the delivery of possession on the second occasion is by the same person and in the same right then an application under Order 21, Rule 97 will have to be made within 30 days not of the second obstruction but of the first obstruction. That however is not a matter which is relevant for consideration, for deciding whether a suit lies under Order 21, Rule 103 of the Code. So far as a suit under that provision is concerned we have to confine ourselves to the provisions of that rule which are in the following terms:
' 103. Orders conclusive subject to regular suit. Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any), the order shall conclusive.'
All that this rule contemplates is that an order should have been made under Rule 98, Rule 99 or Rule 101. It does not say that the application invoking the powers of the Court must be made with in limitation. Again, what this rule contemplates is not merely correction of any error in an order passed decree-holder's right to the possession of property which he had sought but could not obtain in execution. Limitation for such a suit under this rule is prescribed by Article 11A of the Limitation Act and the starting point of limitation, as will be clear from column 3 of that Article, is the date of the order. Where a suit is instituted within one year of that date, then, of course, it will have to be treated as being within time. Now, bearing in mind the fact that the omission to bring a suit within one year of the date of the order would conclude the decree-holder who has obtained a good title from asserting that little, it would be clear that the law must be strictly construed. The argument of Shri Tare in effect amounts to this that the starting point of limitation amounts to this that the starting point of limitation should be the date of order which would have been made by the Court upon an application under Order 21, Rule 97 made within 30 days of the first obstruction. I see no warrant in any of the relevant provisions of the Code of Civil Procedure or of the Limitation Act to justify such a construction. For these reason I hold that the suit is within time.
11. It is clear from the decision of their Lordship in Radhamadhub Holdar v. Monohur Mookerji 15 Ind App 97 that the appellants having obtained the interest of Moreshwar and Madhao by reason of their purchase of the house in execution of the charge decree are entitled to exclude not only those persons but also the respondent who was a purchaser of their interest pendente lite.
12. In this view, I allow the appeal, set aside the decree of the two Court's below the decree the plaintiff's suit with costs in all the Courts.
13. Leave to appeal under the Letters Patent is refused.
14. Appeal allowed.