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Gobardhan Das Vs. Makundi Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All438
AppellantGobardhan Das
RespondentMakundi Lal and anr.
Excerpt:
civil procedure code, order xxi, rules 58 and 63 - execution of decree-- order refining to entertain objection to attachment--order against objector--suit for possession of attached property--limitation--act no. ix of 1908 (indian limitation act), schedule i, article 11. - .....compared with section 283 of the code of 1882. section 283 of the old code expressly mentioned the orders passed under sections 280, 281 and 282 of the code, whereas the present rule 63 makes no mention of rules 60, 61 and 62. the words of rule 63 read in their natural sense include all orders passed under the preceding rules 58, 60, 61 and 62. this rule is not confined to the orders passed under rules 60, 61 and 62 only. the present rule 63 runs as follows: 'where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'4. section 288 of the old code ran in the following terms:the party against whom.....
Judgment:

Ryves and Gokul Prasad, JJ.

1. This is a plaintiff's appeal arising out of a suit for possession of a third share of a ruined house No. 445. The plaintiff's allegation was that the said one-third share was attached by Janki Prasad, father of Ajudlua Prasad, defendant No. 2, in execution of a decree of his against Chhote Lal, the tenant of the khandhal. The plaintiff zamindar objected to the attachment on the ground that as soon as the house fell in ruins and the tenant had left the village, the site had reverted to him and was, therefore, not saleable. This objection was disallowed in the execution department as having been preferred too late. The property was sold by auction on the 17th of September, 1919, and the defendant No. 1 purchased the property. The sale was confirmed on the 27th of November, 1919. When the defendant No. 1 began to rebuild on the said land, the plaintiff tried to stop him but the defendant did not listen to him; hence the present suit. The defendant No. 2, the son of Janki Prasad decree-holder, was also made a party.

2. Several pleas were taken in defence and the trial court decreed the plaintiff's claim. We are not concerned with those pleas. The plea with which we are concerned is one of limitation. It was not raised in the trial court nor was it raised in the grounds of appeal before the learned District Judge. It was, however, raised before him in argument. He allowed it to be raised, accepted it and has dismissed the suit.

3. The plaintiff comes here in second appeal and his contention is that the rule of one year's limitation does not apply and the suit is not so barred. This plea of limitation does not raise any question of fact which it might be necessary to decide. It proceeds on the admitted facts of the case, namely, that the objection of the plaintiff was disallowed on the 15th of September, 1919, and the present suit was not instituted until the 29th of October, 1920. This suit was admittedly brought after the expiry of a year from the order of the Munsif refusing to hear the plaintiff's objection which he preferred in the execution department on the ground that the objection had been made too late. It has been urged with great force by the learned vakil for the appellant that article 11 of the first schedule of, the Limitation Act of 1908 does not apply inasmuch as the objection taken by the zamindar plaintiff under Order XXT, Rule 58, was not investigated, and, therefore, Order XXI, Rule 63, does not apply. It is further contended that the rule of one year's limitation applies only to those orders which are passed after investigation of the claim and not to orders in which the claim has not been investigated at all but has been rejected on the ground that it was preferred too late. A large number of rulings under the old Act (No. XIV of 1882) were referred to by the learned vakil for the appellant. It is, however, not necessary to discuss them because there has been an alteration in Order XXI, Rule 63, as compared with Section 283 of the Code of 1882. Section 283 of the old Code expressly mentioned the orders passed under Sections 280, 281 and 282 of the Code, whereas the present Rule 63 makes no mention of Rules 60, 61 and 62. The words of Rule 63 read in their natural sense include all orders passed under the preceding Rules 58, 60, 61 and 62. This rule is not confined to the orders passed under Rules 60, 61 and 62 only. The present Rule 63 runs as follows: 'Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'

4. Section 288 of the old Code ran in the following terms:

The party against whom an order under Section 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.

5. In the old Code the only conclusive orders were those passed after investigation either in favour of or against the objector, but not those orders which were passed summarily dismissing the objection on the ground that it was made too late, as provided in Section 278 of the old Code. The scope of Rule 63 of the present Code is not, however, so confined as to exclude orders passed under Rule 58 from its operation, and there is nothing in Rule 63 to prevent finality attaching to orders passed under Order XXI, Rule 58, of the present Code of Civil Procedure.

6. It is contended on behalf of the appellant that the order passed in the present case was not against the objector plaintiff but that it was an order refusing to investigate the claim without deciding it. The result of the order, however, was that the property was not released from attachment as the plaintiff objector desired but was allowed to be sold, and this is certainly an order adverse to the claimant who wanted to prevent the property from being sold. It was, therefore, certainly an order against the objector.

7. The only case exactly in point which we have been able $0 discover is the Full Bench case of Venkataratnam v. Ranganayakamma (1918) I.L.R. 41 Mad. 985 in which the same view of the law has been taken. We agree with the decision of the Full Bench referred to above and are of opinion that the present suit is barred by article 11 of the Indian Limitation Act of 1908.

8. We, therefore, dismiss this appeal with costs.


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