Lallubhai Shah, Acting C.J.
1. In 1888 one Vishnu mortgaged his share in the lands in suit to the plaintiff's father and his uncle The mortgagee obtained a decree in 1901 against Vishnu and his brother Sadashiv. Apparently Vishnu purported to have mortgaged Sadashiv's share in the properties. The plaintiff's father had bought over the whole mortgage interest. The plaintiff's father bought the property at the sale in October 1905. In 1908 he attempted to get possession under the sale but, an objection was raised by the present defendant No.1, who re presented the interest of Sadashiv. In November 1909 the objection of defendant No. 1 was allowed, and the Court held that the plaintiff's father was not entitled to exclusive possession, but that he could have joint possession with defendant No. 1. In 1911 the plaintiff filed a suit to enforce his right under the sale, but apparently that was withdrawn with liberty to file a fresh suit. Then a suit was filed in the Rajapur Court on September 12, 1917, but as the subject-matter of the suit was held to be worth more than Rs. 5,000, the plaint was returned for presentation to the proper Court. The present suit was filed in 1918 in the Court of the First Class Subordinate Judge at Ratnagiri. The suit was filed against several defendants who were interested in the lands for partition of the property, and for possession of the plaintiff's share. The plaintiff claimed to be entitled to the shares of Vishnu and Sadashiv in these properties.
2. Various contentions were raised on behalf of the defendants; but three preliminary issues were raised with which alone we are concerned in this appeal. The learned Judge decided these issues in favour of the defendants and against the plaintiff and dismissed the suit. He held that the proper remedy of the plaintiff was to proceed in execution, and that the suit was barred under Section 47, Civil Procedure Code. He accepted this view on the authority of the decision in Sadashiv bin Mahadu v. Narayan Vithal I.L.R. (1911) 35 Bom. 452 according to which if the auction-purchaser happened to be the decree-holder, his proper remedy was to proceed in execution. He also held that in virtue of the order made in November 1909 disallowing the application for exclusive possession and upholding the objection of defendant No. 1 the suit was barred under Article 11 A of the Indian Limitation Act, Schedule I. It was held that as the suit was not brought within one year, the order disallowing his claim against defendant No. 1 had become conclusive. In the result the plaintiff's suit was dismissed.
3. The plaintiff has appealed to this Court. As regards the finding on issue No. 2 relating to the interest of Sadashiv, as represented by defendant No.1, it is not seriously contended that the View taken by the lower Court is wrong. In fact it is admitted that the order made in November 1909 was an order covered by Order XXI, Rule 103, Civil Procedure Code. It follows that as the suit has not been brought within one year, that order has become conclusive.
4. But as regards the plaintiff's right to claim partition in respect of the share of Vishnu, of which he is the owner, the position is different. The decision in Sadashiv v. Narayan has been reconsidered by a Full Bench of this Court in Hurgovind v. Bhudar : (1924)26BOMLR601 and it has been held that an auction-purchaser, who is himself a decree-holder, can sue to recover possession of the property purchased by him at the Court sale.
5. The decision upon which the lower Court rested its conclusion is now overruled, and the view which the appellant contends for has been accepted in Hurgovind Fulchand v. Bhudar Raoji. It is not suggested before us that, if the period of limitation is not three years as for an application for execution, the plaintiff's claim is barred. He sues for partition and possession of his share, and it is clear that there is no bar of limitation to such a suit as brought by the plaintiff.
6. We allow this appeal, reverse the decree of the lower Court and send back the case for disposal on the merits.
7. Costs of this appeal and in the lower Court to be costs in the suit. When the learned Judge comes to dispose of the suit, it will be within his discretion to make such order as to costs as he may think proper.
8. We desire to make it clear that in remanding the case we do not disturb the conclusion of the lower Court, that the plaintiff cannot claim in this suit any interest in respect of Sadashiv's share in the property. We decide nothing in this appeal except the question of limitation and the bar of Section 47, Civil Procedure Code, as regards Vishnu's share in respect of which the plaintiff claims a right to partition and possession.