1. This appeal arises out of a suit filed by the plaintiff against his deceased uncle's daughter, the defendant. The relationship of the parties is given in the pedigree in the plaint. The property with reference to which the dispute has arisen belonged to Nagusa, and on his death, it went to his widow Krishnabai, who died in 1913. The plaintiff is the nephew, that is the son of the brother of Nagusa, and the defendant is the daughter of another brother of Nagusa. It appears that there was a dispute between the plaintiff and the defendant with regard to this house. On November 29, 1920, there was a reference to arbitration. The arbitrator made his award on November 28, 1920, and the present plaintiff filed an application to have a decree in terms of the award on December 6, 1920. The decree was passed in terms of the award on December 7. In pursuance of the decree as soon as the sum of Rs. 200 was tendered by the present defendant and as soon as he realised that that was the only sum which he was to get under the award, he made an application on December 14, 1920, to the Court complaining of the fraudulent manner in which his consent to the Rajinama, that is, the reference to arbitration, was obtained, and as to how the decree came to be passed in a fraudulent manner on the award. Thereafter the sum of Rs. 200 which was tendered by the defendant was taken by the pleader who was engaged by the present plaintiff in these proceedings. It was handed over to the present plaintiff and a receipt was passed. He made several other futile attempts to get rid of the decree by applying to authorities who would have nothing to do with the setting aside of the decree.
2. After that decree was passed the present defendant obtained a decree against the tenant in possession in Suit No. 1537 of 1920 and applied to execute that decree. Then an obstruction was offered by the present plaintiff with the result that on the application (No. 94 of 1921) of the present defendant, who was the plaintiff there, the question of removing the obstruction was considered. The present plaintiff filed his answer to this application to which I shall refer hereafter. But, after examining the present plaintiff the Court made an order allowing the application. The obstruction of the opponent (i. e. the present plaintiff) was not accepted as valid. This order was made on October 30, 1921.
3. Shortly thereafter the present defendant obtained possession in execution of the decree which she had obtained against the tenant in possession. The present suit was filed by the plaintiff on July 5, 1923, in which he prayed for a declaration that the award decree in Suit No. 1681 of 1922 referred to in the plaint was void as it had been brought about by the defendant by defrauding the plaintiff and bringing undue influence to bear on him, and that it was therefore not binding on him. He prayed for possession of the property in question and other minor reliefs.
4. The ground upon which he sought to set aside the decree was that he was defrauded and that in consequence of his weak intellect he was taken in by the assurance given to him at the time of the Rajinama that as a result of the award the plaintiff was to get Rs. 200 per year as rent of the property. The defendant relied upon the apparent regularity of the proceedings before the arbitrator as also before the Court which passed the decree in terms of the award and contended that the plea of the plaintiff that fraud was practised upon him was not justified. She also pleaded that the plaintiff's claim was time-barred. It is not necessary to refer to the defence of adverse possession which really has been negatived by the lower Court and not pressed before us.
5. On both the points the learned trial Judge came to the conclusion adverse to the defendant. The trial Court held that the decree was liable to be set aside as having been obtained on an award which was brought about by fraud and misrepresentation. and further that the claim was not barred under Article 11A of the Indian Limitation Act, because the order that was passed on October 13, 1921, was not the result of such investigation as was required by law, and, therefore, it was not an order within one year of which the suit should have been brought. The plaintiff's claim has been allowed, and from the decree passed by the trial Court the present appeal is preferred. Two points have been urged in support of the appeal.
6. The first point relates to the merits of the plaintiff's claim. That is a matter of evidence. [After discussing the evidence his Lordship proceeded.-] Therefore his plea that the award in dispute was secured by fraud and misrepresentation which has been accepted by the trial Court, must be accepted in appeal.
7. The second question relates to limitation. It is urged that in view of the order of October 30, 1921, passed by the Court dealing with the defendant's application for removal of the obstruction in the other suit, in which she had obtained a decree against the tenant for possession, the present claim for possession is barred under Article 11A of the Indian Limitation Act. In order to appreciate this point it is necessary to know as to what happened in the proceedings for the removal of the obstruction. The present plaintiff in the application which was filed against him after referring to the decree now in question as to how it was obtained said as follows :-
I am taking separate legal stops in order to cancel the aforesaid award, Till then I may not be deprived of my possession. If I lose possession the property will be disposed of. This may be taken into consideration as the property is very valuable. Taking into consideration all these things, it should be decided that possession of the disputed property should not be taken.
8. This statement is Exhibit 29 in the case. After this statement he was examined with reference to the application against him, The order in question was made in these terms :-
The evidence shows that the plaintiff (applicant) Rakhmabai and the opponent (Fakirsa) had a dispute about this very house and the matter was referred to an arbitrator. He decided that Rakhmabai should pay Rs. 200 and retain possession of the house. The copy of the award and the reference to arbitrator prove this. The decree was passed by the Court in accordance with the award and thereafter Rakhmabai applicant paid Rs, 200 in Court and the amount was paid to opponent's pleader. Under the circumstances, the opponent cannot of right offer obstruction to the delivery of possession.
9. Accordingly, an order under Rule 98 of Order XXI was made in favour of the then applicant. The order would be final subject to the result of any suit that may be brought to establish the right which a party claims to the present possession of the property. And Article 11A also relates to a suit by a person against whom an order has been made under the Civil Procedure Code upon an application by the holder of a decree for possession of immoveable property to establish the right which he claims to the present possession of the property comprised in the order, The question to be determined is whether the present suit to set aside the decree and to obtain possession as a consequence of the setting aside of the decree could be said to be a suit to establish the right which he claimed in the proceedings to the present possession of the property. That must be determined with reference to the circumstances of this case.
10. In the present case looking to the proceedings it is clear that the present plaintiff then claimed that possession should not be allowed to be transferred until he took steps to set aside the award decree which he said was obtained by fraud. The present suit cannot be treated as a suit to establish his right to the present possession of the property which he claimed in those proceedings. It is really a suit to claim possession as a consequence of the setting aside of the decree. His present suit is based on the allegation of fraud, and is to set aside the decree, a relief which is quite distinct and different from the one which he claimed in the proceedings relating to the removal of obstruction. The order then made was clearly based upon the view that so long as the decree stood the present plaintiff was bound by it and that there was no reason to justify his obstructing the delivery of possession to the present defendant. But there was no investigation in those proceedings, and it is hardly likely that such a question could be gone into in those proceedings, namely, whether the decree was obtained by fraud or not and whether it was liable to be set aside on that ground. It is perfectly true that in those proceedings the present plaintiff adumbrated the ground which he now relies upon for having the decree set aside. But it did not or could not form the subject-matter of investigation in those proceedings. The contention of the present defendant would have force if the present suit was merely to recover possession from the defendant even though the decree were allowed to stand. No doubt if the plaintiff wanted to recover possession allowing the decree to stand, in view of this order he would be bound to file a suit for such possession as he claimed in the miscellaneous proceedings within a year. But the present suit is on a different cause of action and relates to a point which did not arise in the miscellaneous proceedings. In this view of the matter, it seems to me that the contention of the defendant is not well-founded. The circumstances of each case must be looked at to determine the true nature of the order. I may, however, refer to the observations in Ramanada Butt v. Bithee (1869) 4 M.H.C.R. 263 which was a case under Section 246 of the Code of Civil Proceedure of 1859, at p, 265 of the Report which relate to a point somewhat similar to the one which we have to consider :-
Now the present suit was brought not to establish such a right but to invalidate the decree. The plaint implies the liability of the property for the debt, if the decree be valid, and, charging that the decree had been obtained by collusion and fraud, asks that it may be cancelled on that ground, and as a, consequence the property declared not liable to be sold under the order dismissing the plaintiff's claim, and this is the relief decreed by the lower Courts, The claim in the suit then not being cognizable under Section 246, we think the period of limitation therein prescribed is not applicable.
11. The case was under Section 246 of the old Code of 1859 corresponding to the present Rules 58 to 63 of Order XXI of the Civil Procedure Code. But the principle appears to be the same as to whether in the miscellaneous inquiry in determining the question as to present possession whether the question as to the validity of the decree could or could not be gone into. In the present case we are satisfied that it was not gone into and that it could not have been gone into.
12. In the case of Rango Vithal v. Rikhivadas, (1874) 11 B.H.C.R. 174 which was a case under Section 269 of the Code of 1859 corresponding to Rules 98 to 103 of the present Code, the following observations appear to be useful (p. 176) :-
His light in this last sentence should, on the ordinary principles of interpretation, be identical with the right spoken of in the earlier one, that is, the right to present possession. That is the sole right on which the Court executing the decree has summarily adjudicated, and if its adjudication has been wrong, all that the party, injuriously affected by it, can be reasonably expected to do is to establish 'his right' to that of which he has been deprived, namely, his possession. If the order has been made against the purchaser in execution of the title of the judgment-debtor, it amounts to a denial that that title embraces a right to present possession. If the title does embrace such a right, the order ought to have been different, and the purchaser suing 'to establish his right' must succeed if he establish this right to present possession, no matter what other rights over the same land may be vested in his opponent. But the words, it is plain, are intended to have but a single sense, whether they are applied to the execution-purchaser or his antagonist : if they mean the right to present possession for the former, they must mean it also for the latter.
13. It is hardly necessary to examine the facts of this case. It is enough to say that, in the Code of 1882, the expression 'present possession' had been used in the corresponding provisions and is repeated in the Code of 1908. The question in each case has to be answered with reference to the subject-matter of investigation in miscellaneous proceedings and the subject-matter of the suit, to which the order is pleaded as a bar. Where the basis of the claim in the suit is the same as that put forward in the miscellaneous proceedings to the present possession, Article 11A would apply, but where the basis of the claim is distinct and different and the possession claimed is not present possession but only by way of consequential relief to the decree being set aside, the Article cannot apply.
14. The result is that the contention of the defendant that the claim is barred must be disallowed. We affirm the decree of the lower Court and dismiss the appeal with costs.
15. I agree. I think that the present suit does not fall under Article 11A, because it is not a suit to establish a right which the plaintiff claimed to the present possession of the property in the execution proceeding. In that view, it is unnecessary to consider whether Article 11A covers the case of an order which is passed without investigation, a point on which there is some conflict of authority. The ease might no doubt have been different if the plaintiff had distinctly based his right to present possession in the execution proceedings on the award decree not being binding upon him, and had asked the Court to decide that it was not so binding. Apart from any question whether the executing Court could go into that question, in the present case it is clear that the plaintiff did not take up that position. Therefore, I think Article 11A of the Indian Limitation Act does not bar this suit.