1. This appeal raises a point of some importance. The appellant in this appeal had originally obtained a decree in O. S. No. 281 /24-25 for money and in execution thereof attached the present suit schedule property. Thereafter the said property was sold on 12-9-1940 and the Appellant himself purchased the same. On 25-8-1944 the sale was confirmed. After confirmation of the sale the plaintiff filed a petition for delivery of possession of the properly. When he went to take possession, he was resisted by one Vasanthappa.
The plaintiff thereafter filed a petition against said Vasanthappa for removal of the obstruction. The said Vasanthappa appeared and filed a statement contending that the property belonged to him. The plaintiff's petition was heard and dismissed by the Court on 11-8-1948 on the ground that it was not filed within 30 days from the date of obstruction. Thereafter the Appellant filed this suit for a declaration of his title to the property and for possession.
The suit was dismissed by the trial Court on the ground that such a suit is not maintainable under Order 21, Rule 103, C. P. C., in view of the fact that the application under Order 21, Rule 97 made by the Appellant was dismissed on the ground of limitation; in other words, the said Court held that as the said application made by the Appellant was not heard and decided on its merits, no suit can be instituted under Order 21, Rule 103.
The Appellant thereafter preferred an appeal against the said decision to the Court of the Subordinate Judge, Civil Station, Bangalore. The lower Appellate Court also took the same view. The present appeal has been preferred by the Appellant against the said decision of the lower Appellate Court.
2. At the outset, I should mention that the learned Advocate appearing for the Respondent frankly conceded before me that he is not in a position to resist this appeal and support the view taken by the lower Appellate Court. In my opinion, the attitude of the learned Advocate was very-fair. I am also of the opinion that the view taken by the lower Appellate Court is wholly untenable.
Rule 103 of Order 21 is not a permissive rule in the sense that a party derives his right to institute such suit under the said rule. What that rule toys down is that unless a suit is instituted by a person against whom an order is made under Order 21, Rules 98, 99 or 101 to establish the right which he claims to the present possession of the property, the order made under the said rules will be final and conclusive.
In my opinion, the right of a party to institute a suit is not derived from the provisions of Order 21, Rule 103 but is independent of it. As I have mentioned, Order 21, Rule 103 only makes an order already made under Rule 98, Rule 99 or Rule 101 final and con-elusive unless such a suit is filed. I cannot understand how the. lower Courts could take the view that because the case does not come under Order 21, Rule 103, the present suit is not maintainable.
The view taken by the said Court is clearly negatived by two decisions of this Court reported in Sevaram Lunidaram Sait v. W. II. Hanuman-thappa, 18 Mys LJ 166 and H. K. Ramachandra Rao v. H. K. Subba Rao, ILR 1952 Mys 118: (AIR 1952 Mys 25). In the latter case an application under Order 21, Rule 97 was dismissed as the petitioner failed to appear and to produce evidence in support of his application. He then brought a suit for declaration and possession of the property more than one year after the date of the order of dismissal. The Courts below dismissed it as barred by time.
It was contended in second appeal that an order of dismissal which was passed expert and on failure to adduce evidence could not be one passed after investigation within the meaning of Order 21, Rule 99 and that Rule 103 of Order 21 was therefore, not applicable. This contention was negatived by their Lordships. In delivering judgment of the Court Mr. Justice Mallappa observed as follows:
'Any way, a very important point to be noticed on reading together Rules 60 and 61 of Order XXI, is that the order contemplated in this is 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 words 'the Court is satisfied' are not used before those words in Rule 98 or 99 of Order XXL 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 XXI can be passed even if there is no investigation.'
His Lordship further observed as follows:
'All the same the order dismissing his petition is one falling under Order XXI, Rule 99. Under Order XXI, 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.' It appears that their Lordships proceeded to take the view that even where the order dismissing the petition is made not on merits, the case comes under Order 21, Rule 99 and, therefore, the provisions of Order 21, Rule 103 are attracted to such an order, and unless a suit is instituted within the period of one year as contemplated under Article 11-A of the Limitation Act, that order would be final and binding on the parties thereto.
It follows, therefore, that a suit has to be filed notwithstanding the fact that the order made under Order 21, Rule 98 or Rule 99 was not made upon investigation and unless a suit is filed, the said order will be final and conclusive. The same view seems to have been taken in the other case reported in 18 Mys LJ 166. In delivering judgment in that case, Mr. Justice 'Abdul Ghani, Offg. Chief Justice observed as follows:
'Because of this obstruction, defendant 4 had to apply in Miscellaneous Case No. 42 of 1924-25, under Order XXI, Rule 97 of the Code of Civil Procedure, for removal of obstruction and for delivery of possession thereof. This application failed, and his remedy, according to Order XXI, Rule 103 of the Code, was only by way of suit preferred within one year.
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, 31 Mys C. C. Rule 14, the words 'after investigation' are not to he found in Article 11 of the Limitation Act, unlike Article 11-A, where they are found. So, according to that decision, even if an application to remove obstruction is dismissed for default, a suit under Order XXI, Rule 103, should be filed within one year.'
These observations make the position quite clear beyond all doubt. I am clearly of the opinion that it was necessary for the Appellant to file a suit, as otherwise the order made under Order 21, Rule 99, would have been final and conclusive.
3. In this view of the matter, I set aside theorder of the lower Appellate Court and send thecase back to the trial Court for re-hearing on otherissues raised therein. The Appellant will get costsof this appeal. A certificate is granted to the Appellant under Section 10 of the Mysore Court-fees Actauthorising him to receive from the Deputy Commissioner the full amount of fee paid on the memorandum of appeal.
4. Order accordingly.