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Lalman Das Vs. Jagan Nath Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All376
AppellantLalman Das
RespondentJagan Nath Singh and ors.
Excerpt:
civil procedure code, section 244 - plaint in a suit treated as an application under section 244--limitation act no. xv of 1877 (indian limitation act), schedule ii, article 178. - .....cal. 483, decreed the claim of the plaintiffs. mr. gokul prasad argues for the appellant that this proceeding having been treated by the court below as a proceeding under section 244, the application of the plaintiff is barred by the operation of article 178 of schedule ii of the indian limitation act. if that article is applicable, it is clear that the three years' limitation has long expired. mr. mujtaba for the respondents has suggested that no article of limitation is applicable to such an application as this. the case which he has cited to me is altogether of a different kind, and i see no reason to doubt the propriety of the application of article 178. for this reason i allow the appeal, set aside the decrees of the courts below, and dismiss the plaintiff's suit with costs.
Judgment:

Blair, J.

1. It seems to me that this appeal must succeed. At an auction sale held in execution of a mortgage decree a 16-biswansis share was sold instead of a 15-biswansis share, which was all that under the decree should have been brought to sale. The purchaser is a stranger, and for some 11 years has been in undisturbed possession of the share. The Court below in a somewhat vague manner has apparently treated this proceeding, not as a suit but as an application under Section 244 of the Code of Civil Procedure, and following therein a decision of this Court in Jhamman Lal v. Kewal Ram Weekly Notes 1899, p. 219, in which a Bench of this Court approved of the ruling in the case Biru Mahata v. Shyama Churn Khawas (1895) I.L.R. 22 Cal. 483, decreed the claim of the plaintiffs. Mr. Gokul Prasad argues for the appellant that this proceeding having been treated by the Court below as a proceeding under Section 244, the application of the plaintiff is barred by the operation of Article 178 of Schedule ii of the Indian Limitation Act. If that article is applicable, it is clear that the three years' limitation has long expired. Mr. Mujtaba for the respondents has suggested that no article of limitation is applicable to such an application as this. The case which he has cited to me is altogether of a different kind, and I see no reason to doubt the propriety of the application of Article 178. For this reason I allow the appeal, set aside the decrees of the Courts below, and dismiss the plaintiff's suit with costs.


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