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H.K. Ramachandra Rao Vs. H.K. Subba Rao - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 152 of 1948-49
Judge
Reported inAIR1952Kant25; AIR1952Mys25
ActsLimitaion Act, 1908 - Schedule - Article 11-A; Code of Civil Procedure (CPC), 1908 - Sections 151, 278, 280, 281, 282, 283 and 335 - Order 21, Rules 58, 58(1) 59, 59(1), 60, 61, 62, 63, 95, 97, 98, 99, 100, 101, 102 and 103; ;Mysore Limitation Act - Schedule - Article 11
AppellantH.K. Ramachandra Rao
RespondentH.K. Subba Rao
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateM.P. Somasekhara Rao, Adv.
Excerpt:
the case revolved around an application made under rule 97 of order 21 of the civil procedure code, which was dismissed for default - it further discussed the applicability of article 11-a of the limitation act, 1908, wherein suit to establish right to possession was brought after 1 year - the court ruled that the suit in question was barred time under article 11-a of the limitation act, 1908. - section 16: [k.ramanna,j] suit for specific performance of agreement for sale of immovable property time was essence of contract -plaintiff purchaser had not taken any steps for furtherance of agreement for a period of 1 year held, it shows purchaser was not willing and ready to perform his contract. also, no material was produced to prove that defendant sought to extend stipulated time for.....mallappa, j. 1. this is an appeal against the judgment in r. a. no. 138 of 46-47 on the file of the additional subordinate judge, mysore, confirming the judgment and decree in o. s. no. 84 of 45-46 on the file of the munsiff, hunsur, who had dismissed the suit. 2. the plaintiff-appellant filed the suit under appeal for declaration of title to, and possession of the entire suit property which his deceased father had purchased in execution of a decree obtained against the father of first defendant alone. this was filed more than a year after a miscellaneous petition, filed by him under order 21, rule 97 for removal of obstruction of defendants to his obtaining possession, was dismissed on his failure to appear before court with his witnesses to adduce evidence in support of his case. order.....
Judgment:

Mallappa, J.

1. This is an appeal against the judgment in R. A. No. 138 of 46-47 on the file of the Additional Subordinate Judge, Mysore, confirming the judgment and decree in O. S. No. 84 of 45-46 on the file of the Munsiff, Hunsur, who had dismissed the suit.

2. The plaintiff-appellant filed the suit under appeal for declaration of title to, and possession of the entire suit property which his deceased father had purchased in execution of a decree obtained against the father of first defendant alone. This was filed more than a year after a miscellaneous petition, filed by him under Order 21, Rule 97 for removal of obstruction of defendants to his obtaining possession, was dismissed on his failure to appear before Court with his witnesses to adduce evidence in support of his case. Order 21, Rule 99 states that where the Court is satisfied that, the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. Order 21, Rule 103, says that any party not being a judgment-debtor against whom an order is made under Rule 99, 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 be conclusive. Article 11-A of Schedule II of the Limitation Act prescribes a period of one year for a suit contemplated by Order 21, Rule 103, C.P.C., being filed. It is contended on behalf of Respondents-defendants that the order passed dismissing the miscellaneous petition filed by plaintiff's father under Order 21, Rule 97 is one that was passed under Order 21, Rule 99, and it has become final as no suit was filed within one year after the date of the dismissal of the petition. According to them the present suit is barred by time as it was filed more than a year after the miscellaneous case. On the other hand, it is contended on behalf of the appellant that the miscellaneous petition was dismissed for default of the petitioner to appear before Court and adduce evidence and it was not therefore decided on merits. The order that becomes conclusive under Order 21, Rule 103 on a suit being not filed within one year's time, is an order that is passed under Order 21, Rule 99. An order under Order 21, Rule 99, it is contended is an order passed on merits, as the rule states that the Court should be satisfied that the resistance or obstruction is that of a 'bona fide' claimant before it could pass such an order. An order of dismissal passed 'Ex parte', according to the contention of the appellant, cannot be said to be one passed under Order 21; Rule 99 as the Court cannot be said to have been satisfied that the claim is 'bona fide' and Order 21, Rule 103 is not attracted to such a case.

3. Before analysing the provisions dealing with obstructions to possession of immovable properties purchased in Court sales, it is useful to compare them with the provisions dealing with claims to properties attached in execution of a decree as the wording in the two provisions is similar but not the same. Decisions in respect of one set of provisions are often quoted when a similar question arises in respect of the other set of provisions and in fact in this case decisions dealing with claim cases were relied on. The comparison of the two sets of provisions is very useful and they are here given below side by side for purposes of comparison:

58 (1) Where any claim is preferred to or anyobjection is made to the attachment of, any property attached in execution ofa decree on the ground that such property is not liable to such attachment, theCourt shall proceed to investigate the claim.

Provided that no such investigationshall be made where the Court considers that the claim or objection wasdesignedly or unnecessarily delayed.

97 (1) Where the holder of a decree for thepossession of immoveable property or the purchaser of any such property soldin execution of a decree is resistedor obstructed by any person in obtaining possession of the property, he maymake an application to the Court complaining of such resistance orobstruction.

59. The claimant must adduce evidence.

97 (2) The Court shall fix a day for investigatingthe matter.

60. 'Where upon the said Investigation' the Courtis satisfied that........ suit property was not, when attached, in thepossession of judgment-debtor .......... the Court shall make an order releasingthe property, wholly or to such extent as it thinks fit, from attachment.

98. Where the court is satisfied that theresistance or obstruction was occasioned without any just cause by thejudgment-debtor or by some other person at his Investigation, it shall directthat the applicant be put into possession of the property.

61. Where the Court is satisfied that the propertywas ........in the possession of the Judgment-debtor ............ the Courtshall dismiss the claim.

99. Where the Court is satisfied that theresistance or obstruction was occasioned by any person (other than thejudgment-debtor) claiming in good faith to be in possession of the propertyon his own account or on account of some person other than the judgment-debtorthe Court shall make an order dismissing the application.

4. The first thing that strikes one when these two sets of provisions are read together is the close similarity of the wording in them. It is clear that the similarity of words used in the two sets of provisions is intentional and not accidental. It Js equally clear, that if there is any substantial difference that difference is also intentional. The 'similarity is apparent and a little scrutiny discloses the difference. It will be noticed, in the first place that the investigation in respect of a claim to attach property may be refused in certain cases under the proviso to Rule 59 (1). On the other hand the Court is bound to direct an investigation in respect of claims of persons who obstruct delivery of possession. The mere fact that a Court directs an investigation does not mean that an investigation is made in the sense that evidence is adduced or that other material is made available by the petitioner, The petition may be dismissed in case the petitioner does not adduce any evidence or place other material or it may be dismissed on merits on considering the evidence in the case. Anyway, a very important point to be noticed on reading together Rules 60 and '61 of order 21, is that the order contemplated in this set of rules can only be passed where the Court is satisfied one way or the other after investigation. On the other hand, the words 'whereupon the said investigation' found in Rule 60 before the word 'the Court is satisfied' are not used before those words in Rules 98 or 99 of Order 21. The omission of the words is as already stated not accidental. It follows therefore that the orders contemplated under Rules 98 and 99 of Order 21 can be passed even if there is no investigation. How can it then be said that the Court is satisfied about the existence of the circumstances mentioned in Rules 98 or 99 of Order 21, unless the matter is investigated? When a person flies a petition and an objection statement is filed and the petitioner does not care to come to Court to adduce evidence on the date to which the case stands posted for that purpose, the Court can feel satisfied that there is no substance in his case. Thus, even an ex parte dismissal of a petition filed by a person complaining of obstruction can be construed as an order passed under Order 21, Rule 98 or 99 as an order under these rules can be passed after investigation or without investigation. To hold otherwise would be to ignore the significance of the absence of the words 'whereupon the said investigation' before the words 'the Court is satisfied' in Rules 98 and 99 of Order 21, as compared with these words found in order 21, Rule 60. In this case, the Miscellaneous Petition filed by plaintiff's father complaining of obstruction was dismissed as he failed to appear before Court and adduce evidence on the day fixed for that purpose. All the same the order dismissing his petition is one falling under Order 21, Rule 99. Under Order 21, Rule 103, this order made under Rule 99 became final as no suit was filed within a period of one year as contemplated under Article 11-A of Limitation Act.

5. It is to emphasis this distinction between the provisions of Order 21, Rules 58 to 63 and the provisions of Order 21, Rules 97 to 103 that the words 'after investigation' were inserted in Rule 63 by amendment on 11th September 1937 while no such amendment was made in Rule 103. Rule 63 after this amendment and Rule 103 are given below for purposes of comparison:

'O. 21, R, 63: Where a claim or an objection 3s preferred, the party against whom an orderis made 'after investigation' may institute a suit to establishthe right which he claims to the property in dispute, but, subject to the result of such suit, if any, theorder shall be con-elusive.

O. 21, R. 103: Anyparty not being a judgment-debtor against whom an order is made underRule 98, Rule 99 or Rule 101 may institute a suit to. establish theright which he claims to the present possession of the property; but, subjectto the result of such suit, if any, the order shall be conclusive.

It is therefore clearthat even 'ex parts' orders passed- under Rule 98, Rule 69 or Rule 101 of Order 21, withoutinvestigation in the sense that no evidence is adduced, become conclusive subject to the result of a suitif any filed within one year from the date of the orders. But inthe case of orders passed under Order 21, Rules 60 or 61 at any rate afterthe ' amendment in 1937 inserting the words 'after investigation'in Rule 63 till the words were deleted again by another amendment of thatrule, 'ex parte' orders passed under

Rules 59 and 60 did notbecome final under Rule 63.

(6) Then again compare Article 11 of Mysore LimitationAct which is applicable to suits to set aside orders on application filedunder Order 21, Rule 58 with Article 11- A applicable to suits filed to setaside orders under Rules 98, 99 and 101 of Order 21 and noticethe absence of the words 'alter investigation' in Article 11-A. The two articles are given below side byside for purpose of comparison ;

ARTICLE11.

By a person against whom an order has been made under the Code of CivilProcedure after an investigation of a claim preferred to, or an objectionmade to the attachment of, property attached in execution of a decree,to establish the right which he claims to the property comprisedin the order.

ARTICLE 11-A.

By a person against whom an order has been made under the Code of CivilProcedure, upon an application by the holder of a decree for thepossession of immoveable property or by the purchaser of such property sold in execution of adecree, complaining of resistance or obstruction to the delivery of possession thereof, or upon anapplication by any person dispossessed of such property in the deliveryof possession thereof to the decree-holder or purchaser, toestablish the right which he claims to the present possession of the property comprised in the order.

It is in view of this dirrerence, it was observed in '3 Mys. L.J., 7 as follows:

Where a claim preferred under Order 21, Rule 58, C.P.C., is dismissed for default of claimant who on the date fixed for hearing was neither himself present nor had his witness in attendance, a suit to establish the claim is not barred by Art. 11 of the Limitation Act in force in Mysore, because in terms that article only applies 'where an order has been made....after investigation of a claim.'

The view expressed in this case was followed in 'Hussain Veil v. Nanjappa Setty', 4 Mys. L. J., 161, which also deals with a suit filed to set aside an order dismissing a claim petition 'ex parte.' On the other hand the decision reported in 'Khasim Sali v. Dilawar Khan', 3 Mys. L. J., 222, refers to a case of a plaintiff who has filed a suit of the kind now under consideration, 'in execution of this partition decree he applied for delivery of possession of his share........As the respondent-defendant resisted him in obtaining possession of the property an application under Order 21, Rule 97 was filed for the removal of obstruction and delivery of property. That application was dismissed for default of prosecution without any investigation on 22-7-1915. The present suit was filed ..... on 17-6-1919 for the recovery of the same property.' It was held in that case:

'On the clear wording of Article 11-A of the Lim. Regn. which must be read with Order 21, Rule 103, O.P.C., there could be no exception in the case of orders passed without investigation and the suit filed after the lapse of one year from the date of dismissal of the miscellaneous application under. Order 21, Rule 97, was barred by time,'

The decision has been followed in '18 Mys. L. J 166' in which Abdul Ghani, Officiating C. J., observed as follows; 'at page 175.'

'It is immaterial whether Miscellaneous Case No. 42 of 1924-25, to remove obstruction was dismissed after investigation or without it, because as pointed out in 'Khasim Sab v. Dilawar Khan', 3 Mys L J 222, the words 'after an Investigation' are not to be found in Article 11-A of the Limitation Act, unlike Article 11, where they are found. So, according to that decision, even if an application to remove obstruction is dismissed for default, a suit under Order 21, Rule 103, should be filed within one year.'

The only other decision that needs our consideration is that reported in '22 Mys L J 233. Venkatavamana Rao, C. J., and Venkataranga lyengar, J. agreed with the decision 'Hussain Vali v. Nanjappa Setty', 4 Mys L J 161, and it was observed that:

'the ratio of that decision is that where a claim Was dismissed for default, the order of dismissal was one not made after investigation and therefore Order 21, Rule 63 would not apply and there was no obligation on the part of the claimant to file a suit within one year to set aside that order ......Order 21, Rule 63 was later amended inour state by the insertion of words 'after investigation' after the words 'order is made' to avoid the conflict similar to that prevailing in British India and also to make it conform with the view taken in 'Hussain Valt v. Nanjappa Setty', 4 Mys L J 161.'

The learned Judges were dealing with a case under Order 21, Rule 63, and the decision of their Lordships on this aspect of the matter is an authority on the point.

7. The learned Judges have, however, expressed their opinion in respect of cases arising under Order 21, Rule 103 and Article 11-A in which the words 'after investigation' are not found as a contrast to Article 11 in which those words were found. As pointed out by the learned Judges the decision reported in '3 Mys L J 222, referred to this distinction In the wording of Article 11 and 11-A of Limitation Act with reference to the words and 'after investigation' as a moot point for consideration. An unequivocal answer to that question was however given in '3 Mys L J case.' That was a case in which a suit was filed more than a year after an application filed under Order 21, Rule 97 was dismissed for default and it was observed :

'It is not for us to state why on principle an investigation is essential under Article 11 and not under Article 11-A for the application of one year rule. The difference in language and scope may or may not be intentional. We have to interpret them as we find them. We are therefore of opinion that the present suit is barred under Article 11-A also.'

It is no doubt true that the learned Judges also found that the suit was also barred under Article-144 of the Limitation Act. The fact that a decision on one of the two points raised in a case is sufficient to dispose of the case does not make either of the decision on the two points not authoritative. If at all, it may be said that when a suit filed to set aside an order dismissing an application under Order 21, Rule 97 could be said to be barred after one year after the date of that order, the question whether it is barred under another article also as it was filed after 12 years may not strictly speaking arise, but that cannot be said of the bar under Article 11 of Sch. II of the Limitation Act. It has to be stated with the utmost respect that the authority of the decision in '3 Mys L J 222' cannot be said to have been affected by what has been said with reference to it in '22 Mys L J 233.

8. A similar observation has been made in '22 Mys L J 237, with reference to '18 Mys L J 166' The learned Judges observe:

'That the case was not one of dismissal for de-fault and the actual decision was that the application under Order 21, Rule 97 was barred by time, having been preferred more than 30 days from the date of alleged obstruction. So the observations so far as they related to the case of a dismissal for default were only obiter.'

The point for consideration in cases of suits filed to set aside orders dismissing applications under Order 21, Rule 97, 98 or 101, more than a year after the passing of the orders is whether the application was dismissed 'after an investigation' or without it. This matters as the words 'after an investigation' found in Order 21, Rule 63, C.P.C., and Article 11 of Schedule II, Limitation Act are not found in Order 21, Rule 103 and Article 11-A of the Limitation Act. Whether an application was dismissed as barred by time or for default it cannot be said that it was dismissed after an investigation is held. A decision holding that a suit filed more than a year after the dismissal of an application under Order 21 Rule 97, on the ground of Limitation, is barred by time in spite of the fact that it was dismissed without investigation is an authority for holding that a suit filed more than a year after an application under Order 21, Rule 97, is dismissed for default is barred by time as in both the cases the only ground that can be raised against such a view is that the dismissal was without investigation. Moreover, the point for consideration in the case reported in '22 Mys L J 237, was one falling under Order 21, Rule 63, C.P.C., and Art. 11 of Schedule II of the Limitation Act and whatever necessity there might have been to compare these provisions of law with those in Order 21, Rule 103, C.P.C., and Article 11-A, it cannot be said that the opinion expressed in respect of the provisions that did not arise in the case, has to be treated only with the respect we usually give to obiter dicta of learned Judges that give expression to them. It has to be stated with the utmost respect that the decisions in '3 Mys L J 222 and '18 Mys L J 166', where the matter under consideration in this case directly arose for consideration are binding on us in spite of the observations made with reference to them in '2a Mys L J 106', a case where the point did not arise directly for a decision.

9. It has to be observed that the Legislature in Mysore, which had placed applicants under Order 21, Rule 58, who had failed to take stepsto have their claims investigated, in a better position than those who failed to prove their case after investigation, has now alone away with that unnecessary distinction by dropping the words 'after an investigation' in the first column of Article 11 of the first schedule of Limitation Act. The object is stated as follows:

'A claimant or objector who puts forward his claim or objection and interferes with execution proceedings and then does not take step to have his claim investigated is in a better position than the one who gets his claim investigated. Very often the claimants will be acting on behalf of the judgment-debtor to impede the progress in the realisation of the decree amount. There is no reason to treat the two claimants differently.'

It will follow that the amendment is intended to raise a bar under Article 11 to a suit filed more than a year after the dismissal of a claim petition for default, to set aside the order. This also clarifies the view of the Legislature with reference to Art. 11-A of the Limitation Act in which the words 'after an investigation' now deleted in Article 11, never existed. It may be however observed here that It is desirable also to drop the words 'after an investigation' in Order 21, Rule 63 to avoid any doubt in the matter.

10. It may be added that the words 'after an investigation' are generally understood to be equivalent to the words 'after an investigation is actually held.' What, however, was possibly intended is to make a distinction between claim cases dismissed after refusing investigation under Order 21, Rule 58 (1) Proviso corresponding to old Section 278 Civil Procedure Code and orders passed under Order 21, Rule 60 or 61 corresponding to old Sections 280 and 281 Civil P. C. after an investigation was ordered whether the claimant failed to appear to adduce evidence or actually adduced evidence. It has to be remembered that under the old Section 283, C.P.C., corresponding to Order 21, Rule 63 it is only an order passed after the Court ordered investigation whether there was investigation or not that became conclusive, subject to the results of suits filed within one year from the date of the order and not an order dismissing a claim petition after refusing investigation. No such distinction was made under the old Section corresponding to Order 21, Rules 97 to 103 as there was no provision there for refusing investigation in such cases. When Order 21, Rules 57 to 63 replaced the corresponding sections of the old C.P.C., in 1908 in what was British India Order, 21, Rule 63 was framed without retaining the distinctions between orders made after directing investigation and orders made refusing investigation. It is evidentally to prevent orders dismissing claim petitions after refusing investigation becoming conclusive subject to the result of a suit within one year, that the words 'after an investigation' were added to Article 11 of Schedule II of our Limitation Act when the new C.P.C., was introduced in Mysore in 1911. This is particularly so as there was difference of opinion in the Courts suitside Mysore as is clear from the following passage by Chitaley and Annaji Rao's Commentaries on the Code of Civil Procedure at page 2213, Vol. II, IV Edition:

'Section 283 of the Old Code applied only to orders passed under Sections 280, 281 and 282 and consequently it was held that an order passed without investigation rejecting a claim on the ground of delay was not an order contemplated by the section and hence, the one year's rule of limitation would not apply to such a case. Under the present rule, it has been held that orders passed, against the claimant or decree-holder, whether with or without investigation, are placedon the same footing, with the result that, if the party against whom the order of rejection is made under the proviso to Rule 58 does not file a suit within one year, the order becomes conclusive against him. The test is whether the order is 'against' the claimant or decree-holder. This does not mean that the order must involve an adjudication on the merits after investigation. Thus, an order passed on a claim, that the allegation of the claimant will be notified to the bidders as the petition was put in too late has been held by a Full Bench of the High Court of Madras to be a conclusive order against the claimant within the meaning of this rule. But in several decisions, even under the present Code, it has been held that an order passes without investigation is not within this rule.'

11. The words 'after an investigation' are not found in the provisions of Order 21, Rules 97 to 103. No distinction was even made in those provisions between cases decided after investigation or before investigation. It follows that an order dismissing for default, an application under Order 21, Rule 97, C.P.C., becomes conclusive subject to the result of a suit to be filed within one year The lower Courts are right in holding that the suit filed more than one year after the dismissal of such an application for default of the petitioner to adduce evidence in the case is barred by time, The appeal stands, therefore, dismissed with

Vasudevamurthy, J

12. The plaintiffs father filed a suit for the recovery of a debt due to him on the foot of a mortgage-deed executed by one Hebbaruvaiah's son Krishnappa in O. S. No. 321 of 1931-32 in the Court of the Munsiff at Hun-sur. That suit was filed only against Krishnappa, father of defendant 1 and grandfather of defendants 2, 3 and 4. After obtaining a decree the plaintiff's father brought the mortgaged property to sale and purchased it himself in Court auction. When he sought for delivery of possession in Misc. Case No. 168/37-38, he was obstructed by the defendants on 24-3-1938. He then applied in Misc. Case No. 195/37-38 on 2-4-38 under Order 21, Rule 97 of the Code of Civil Procedure for removal of obstruction and delivery of possession. That application was originally made against one Boriah and the present defendants. Boriah alone was served with notice of the application and filed his objections. The others apparently could not be served for want of correct address and on 14-10-38 the plaintiff's father gave up all the opponents except Boriah and elected to proceed only against him. When the application came up finally for trial on 6-1-1939 the petitioner as well as his lawyer were absent. The petitioner had not taken steps to summon his witnesses and his lawyer who earlier in the day had offered to address arguments failed to appear when the case was called on later and the petition was dismissed with costs.

13. On 2-2-1940 the plaintiff's father then made another application in Misc. 141/39-10 under Section 151 and Order 21, Rule 95 of the Code of Civil Procedure praying for delivery of possession of the property. To that application he impleaded only the original judgment-debtor Krishnappa; and neither Boriah nor the defendants were included as opponents, He referred in it casually to an obstruction by the judgment-debtor's sons under instructions from the judgment-debtor. He carefully chose to avoid making any reference in that application to his earlier application Misc. 195 of 1937-38 for removal of obstruction and its dismissal for default but referred only to the initial application for delivery made in Misc. 168/37-38. On that application it was noted by the Court (office) that the date of obstruction had not been furnished; but it was also furtherstated that an application under Order 21, Rule 87 of the Code was made within 30 days from date of obstruction without disclosing its dismissal which was obviously misleading. The Munsiff thereupon passed orders calling for records in Misc. 168/37-38 to verify the portion not obstructed but later even before these records were received, he directed delivery of possession by 17-5-1940. The property was accordingly delivered to the petitioner and the application was ordered to be filed.

14. Subsequently, on 29-1-1943 the respondents made an application which was numbered as Misc. 157 Of 1942-43 under Section 151 and Section 47 of the Code of Civil Procedure wherein they set out the above circumstances and complained that they had been dispossessed wrongfully by an order for delivery which had been obtained by the decree-holder by suppressing the previous unsuccessful proceedings tor removal of obstruction; and they asked for the property being restored to their possession. This application was dismissed by the Munsiff, but in revision in C.RP No. 356/ 43-44 the High Court set aside the order of the Munsiff and directed that possession of the property be restored to the respondents. Nagcsvara Iyer, J., who heard the C.R.P., found that an order for delivery had been obtained in a fraudulent and 'clandestine' way by playing a trick on the Court. That order was passed on 30-8-44. The plaintiff has now brought the present suit alleging that the property concerned in the above proceedings is a self-acquisition of the deceased father of defendant 1 and that the hypothecation debt and decree and the sale proceedings consequent thereon were all binding on the defendants as the debt was incurred by the deceased for purposes of legal necessity and for the benefit of the family. He has prayed for a declaration that the order passed by the High Court was not binding on him and was liable to be set aside, and for delivery of possession of the property and mesne profits. That suit has been resisted mainly on the ground that it is barred by virtue of the provisions of Order 21, B. 103, C.P.C., as the plaintiff had failed to bring a suit to establish his right to claim possession within one year of the dismissal of his application in Misc. 195/37-38. The defendants also pleaded that the properties were not the self-acquisitions of the deceased and that the hypothecation debt, decree and other sale proceedings were not binding on them. The learned Munsift upheld the former objection and dismissed the suit without going into evidence. That judgment was confirmed on appeal by the Subordinate Judge of Mysore; and the plaintiff has now come up in second appeal.

15. Mr. V. Krishnamurthy, learned counsel for the appellant, contends that as Misc. 195/37-38 was dismissed for default and was not decided on merits after investigation, the appellant was not bound to bring a suit within one year of such dismissal and that Order 21, Rule 103, C.P.C., read with Article 11-A of the Limitation Act is not a bar to his suit. The matter is clearly covered by a ruling of this Court in '3 Mys L J 222 where Doraswami Iyer and Rama Rao, JJ., have held that, on the wording of Article 11-A of the Limitation Regulation which must be read with Order 21, Rule 103 of the Code of Civil Procedure, even in the case of orders passed without investigation a suit filed after the lapse of one year from the date of dismissal of an application under Order 21, Rule 97 would be barred by time. This case has been referred to with approval and followed in '18 Mys L J 166. The latter was a case some what similar to the present one. Defendant 4 in that case had purchased a property in Court sale in execution of a decree obtained by him against defendants 2 to 3. The plaintiff's vendor had, however, purchased the property earlier also in execution of a decree. When the plaintiff sued for recovery of possession of that property alleging that he had obtained possession through' Court from the judgment-debtors and that he had subsequently been deprived of possession by defendant 4 by winning over his tenant, it was found that defendant 4 had applied to Court for delivery of possession earlier but was unsuccessful as the plaintiff and his tenant had offered obstruction. Thereupon defendant 4 had applied for removal of obstruction and delivery of possession. That application was opposed by the plaintiff and was dismissed on the ground that it was barred by time having been preferred more than 30 days after the date of the alleged obstruction. Defendant 4 did not then file a suit under Order 21, Rule 103, of the Code of Civil Procedure for getting the order in the miscellaneous case set aside and to establish his right to present possession of the property, but some time later he again applied under Order 21, Rule 95, C.P.C., and managed to secure delivery of possession of the property. It was held by this Court that by reason of the dismissal of defendant 4's application under Order 21, Rule 97 and his failure to file a suit within one year to set aside that order, his claim to present possession was concluded and even as a defendant he could not resist recovery of possession by the plaintiif. Their Lordships observed that according to the decision in '3 Mys LJ 222 even if an application to remove obstruction is dismissed for default, 9 suit under Order 21, Rule 103 should have been filed within one year. They go on to say:

'whether defendant 4 obtained possession later through Court or by getting round the tenant or by force or by any other way, it is quite clear on the state of the law as it stands and on the authority that as between the plaintiff and D.w. 4, there is a bar provided under Order 21, Rule 103 of the Code and the later has lost his right to possession, and is precluded from either suing as plaintiff to recover possession or to retain possession as defendant.'

16. Mr. Krishnamurthy has, however, urged that the decision in '3 Mys L J 222' may be reconsidered in the light of certain subsequent amendments of the concerned provisions in the Code of Civil Procedure and in the Limitation Act. He represents that, in Mysore, Article 11 of the Limitation Act was amended by Act II of 1939 by deleting the words 'after an investigation of a claim' which were originally found in that article, that it was the existence of those words in Article 11 when the '3 Mys L J 222 case', was decided that impelled Doraswami lyer, J., to decide that certain rulings under Rule 63 and Article 11 of the corresponding British Indian enactments even though inapplicable to Rule 63 read with Article 11 of the Mysore Limitation Regulation may apply to Rule 103 read with Article 11-A and that now Article 11 of. the Mysore Limitation Regulation has been amended the ground on which Doraswami lyer, J., based his decision may not be applicable with the same force. But it is seen that Doraswami Iyer J., has observed in '3 Mys L J 222', that it is not for the Court to state why on principle an investigation is essential under Article 11 and not under Article 11-A for the application of the one year's rule and that the Court had to interpret these articles as it found then. Those observations still continue to apply with equal force, if not with greater force. In Mysore Article 11 in the Limitation Act of 1911 has since been amended by Act II of 1939 by omitting the words 'after an investigation of a claim.' And though the object or reason for such amendment may not be legally binding on the Court, it is interesting to notice that the amendment was sought to be made by the legislature because it was felt that a defaulting claimant who applies to the Court for an adjudication under Order 21, Rule 58 and who either by withdrawing it or being in default gets his claim dismissed should not be placed in a better position than an honest or diligent claimant who produced his evidence and obtains a decision on the merits of his claim (see Objects and Reasons for the amendment in the note in the Mysore Gazette, dated 17-11-1938 publishing the Bill.) It must also be remembered that it is of great importance that the questions raised in connection with execution of decrees and the cloud cast on a title by reason of an attachment or by dispossession or obstruction should be investigated and disposed of as early as possible and Order 21, Rules 58 to 63 and Order 21, Rules 97 to 103 are designed for that purpose. Articles 11 and 11-A prescribe a comparatively short period of limitation for bringing a suit which is made compulsory by virtue of the provisions in Order 21, Rule 103 with the same object. As observed by the Privy Council in 'Sardharilal v. Ambika Pershad', 15 Cal 521:

'The policy of the (Limitation) Act evidently is to secure speedy settlement of questions of title raised at execution sales and for that reason a year is fixed, as the time within which the suit must be brought.'

It is of course not incumbent on a stranger to the litigation whose property has been attached or whose possession is disturbed or for the auction purchaser who is obstructed when he seeks to obtain possession always to file an application invoking the summary jurisdiction of the Court under those provisions but if he does so there can be no hardship, much less grievance to him, if he is compelled to bring a suit early to have any adverse order passed in those proceedings as a result of his own negligence of default set aside by a regular suit so that the realisation of the fruits of the decree may not be delayed or deferred unnecessarily. He has also in addition a remedy to have the dismissal order set aside and the application re-heard by filing a miscellaneous application within 30 days and by showing proper cause for his default; See 'Safdar Ali v. Kishun Lal', 7 Ind Cas 241 (Cal); 3 Mys L Jour 218 and 7 Mys L Jour 263. It has also to be noticed that 'Sarat Chandra v. Tarini Prasad', 34 Cal 491 which was decided in 1907 and 'Surendra Nath v. Rajatni Kanta', 41 Ind Cas 446 (Cal) now relied on by Mr. Krishnamurthy have been referred to in '3 Mys L Jour 218, and have not been followed, the former on the ground that it was no longer good Jaw after the passing of the new Code of Civil Procedure and the Limitation Act in 1911. The earlier cases of this Court in '15 Mys C C B 223 and '18 Mys C C R 116 were also not followed for the same reason.

17. Two more recent cases in 'Nirode- Borani Dasi v. Moindra Narayan', 26 CWN 853; A I B (9) 1922 Cal 229 and 'Wamandhar v. Kampta Prasad', AIR (13) 1926 Nag 423: 97 1C 178 have also been cited for the appellant. In the latter case the claim was really one under Order 21, Rule 16 and that decision is not of any use to him. The learned Judges who decided 26 C W N 853 observed :

'It is difficult to reconcile all these decisions. It may be said as was urged in some of the cases that there is no reason why the limitation should apply where the party appears and is unable or does not adduce evidence and that the limitation should not apply where the party takes care not to come to Court on the day fixed for hearing.'

But they considered that a distinction has been drawn in the Code of Civil Procedure between a case where it is dismissed for default and a case where a party appears and fails to adduce evidence and the case is in consequence dismissed in which event the dismissal is not one for default. They chose to follow the line of decisions like 'Kunj Beharilal v. Kandh Prasad Narain Singh', 6 Cal I, Jour 362, 34 Cal 491 and distinguished 'Shagun Chand v. Shitabi', 8 All L Jour 626 and 'Chandi Prasad v. Nand Kishore', 20 Ind Cas 369 (All), on the ground that in the first of these cases the pleader for the petitioner had appeared and stated that his client did not wish to adduce any evidence and the application was therefore dismissed and that in the second case counsel for both parties were present and no evidence was adduced. With great respect it is rather difficult to follow this reasoning. The difference in the Code between an ex parte decision and a decision given in the presence of a party appears mainly if not wholly to lie in whether he can have it reopened by an application.

18. Mr. M. P. Somasekhara Rao, learned counsel for the Respondents, contends that there is no hard and fast rule as to what extent the investigation in the case of an application under Order 21, Rule 97, 98 or 09 should go as pointed out by the judicial Committee in 'Sardhari Lal v. Ambika Pershad', 15 Cal 521. He urges that, merely because the claimant does not appear to adduce evidence in support of his claim it cannot be said that there has been no 'investigation' and he has relied on 'Gokul v. Mohori Bibi', 40 All 325, and to 20 Ind Cas 369 (All) and 6 Cal L Jour 362 which have been referred to with approval in that case and a case reported in 'Gulab v. Muta saddi Lal', 41 All 623. In the last case which was a case of a claim under order 21, Rule 58 the claimant failed to appear on the date fixed for the hearing of his petition and an order was made disallowing his claim on account of his absence. In second appeal the High Court held 'that a suit brought by a purchaser from him more than one year after that order was barred by limitation under Article 11 as the order disallowing the objection was an order 'against' the objector within the meaning of Rule 63 of Order 2l.,which word is the same as is used in Rule 103. 'At page 625' the learned Judges observe:

'We find it impossible to hold that where an objector comes forward and says that he cannot sustain the objection the article applies, while if he takes care to remain absent the article will not apply. It is quite clear that the policy of the law is that these objections should be speedily decided and that there should be a short period of limitation allowed for the party against whom the order was made.'

and refer to the clear policy of the law that such objections should be speedily decided and that there should be a short period of limitation allowed for the party 'against' whom the order is made. In 'Shagunchand v. Shibbi', 10 Ind Cas 401 (All), a suit brought beyond one year after the dismissal of the plaintiff's earlier application which had been dismissed as the applicant had not adduced any evidence 'as he did not wish to do so', was held to be barred under Section 335 of the Old Code of Civil Procedure corresponding to Order 21, Rule 103 of the present Code. In 'Hari sadey Saha v. Mahendra Narain Raj' : AIR1935Cal267 , it has been held relying on 15 Cal 521, that in proceedings under Order 21, Rule 97 when the auction-purchaser is present but does not adduce evidence and the Court passes an order on the basis of some evidence let in by the opposite party, there was sufficient investigation so as to bring it under Article 11-A of the Limitation Act.

19. If an application under Order 21, Rules 91 98 or 99 is posted for enquiry or trial and the parties are given an opportunity to establish their claims but the petitioner or his opponent chooses to remain absent or fails or refuses to adduce evidence in support of his contention and the Court therefore proceeds to pass an order either allowing or dismissing the claim because the party on whom the burden and the duty lay to produce evidence failed to do so it is difficult to see how there was no investigation so as to entitle the unsuccessful applicant to say that no order which he was bound to have set aside under Order 21, Rule 103 within one year has been made against him. Instead of trying to reconcile this conflict of decisions again, it appears safer to follow the case reported in '3 Mys L J 222 which was decided so far back as 1925 and has apparently been accepted and followed by our Courts and litigants as a safe rule of procedural law and to hold that it has not now been shown why that decision should be disturbed.

20. In the result this appeal fails and is dismissed with costs.

21. Appeal dismissed.


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