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Kishori Lal and ors. Vs. Kuber Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.503
AppellantKishori Lal and ors.
RespondentKuber Singh
Excerpt:
civil procedure code (act xiv of 1882), section 310a - order setting aside a sale in execution--suit to set aside an order of civil court--limitation--limitation act (xv of 1877), schedule ii. articles 13, 120. - - this was clearly, we think, never intended......a suit to alter or set aside a decision or order of a civil court in any proceeding other than a suit. 'suit' is defined in section 3 of the act as not including an appeal or an application. 'suit', therefore, in the article does not include an application in a suit. the article applies to an order in any proceeding other than a suit and as an application is excluded from a suit,' it applies to an order in a proceeding on an application. if after the words ' other than a suit' the words or application in a suit' had been added to the article, it would be different. now the order of the munsif setting aside the sale was an order in a proceeding other than a suit and article 13 is, in our opinion, applicable. if this were not so, we should have a period of one year allowed for the.....
Judgment:

1. The facts of this case are these:-- The unit is one for the recovery of property which was bought by the plaintiffs at a sale in execution of a decree on the 20th of September, 1901. This sale was set aside by the Munsif on the 26th of September, 1901. On appeal the order of the Munsif setting aside the sale was reversed by the lower appellate Court on the 16th of January, 1902, and this order was upheld by the High Court on the 4th of December, 1902. Then the judgment-debtor on the 23rd of December, 1902, applied to the Munsif under Section 310A of Act XIV of 1882 to have the sale set aside and his application was granted on the 28th of April, 1903, and the sale was set aside. An appeal was preferred and the order of the Munsif setting aside the sale was reversed on the 17th of July, 1903, but on second appeal to the High Court, it was held that no appeal lay to the lower appellate Court and the decision of that Court was reversed. The order of the Munsif of the 28th of April, 1903, accordingly stood affirmed.

2. The suit out of which this appeal has arisen was then preferred by the plaintiffs on the 6th of August, 1907. They claimed possession of the property which had been sold to them, alleging that the Munsif had no jurisdiction to set aside the sale to them by his order of the 28th of April, 1903.

3. The learned Judge of this Court, from whose decision this appeal has been preferred, agreeing with the lower Courts, dismissed the plaintiff's claim, holding that the Munsif had jurisdiction to pass the order of the 28th of April, 1903, and that the plaintiff's suit was barred by limitation, it not having been brought within one year from the date of that order.

4. We are of opinion that the decision of the learned Judge of this Court is correct, and that Article 13 of Schedule II of the Limitation Act is applicable to this case. It is obvious that the plaintiffs cannot obtain a decree for possession without first having the order of the Munsif of the 28th of April, 1903, set aside. This order, whether it was passed rightly or wrongly, cannot be treated as a nullity. We have then to see what period of limitation is prescribed for a suit to have such an order set aside. It is contended on behalf of the appellants that period of limitation is not expressly provided in the Schedule to the Limitation Act, and that Article 120 which allows a period of six years within which to bring a suit is applicable. We are of opinion that the article which is applicable is Article 13. Article 12 provides a period of one year's limitation for a suit to set aside, amongst others, a sale in execution of a decree of a Civil Court. Article 13 provides the same period of limitation for a suit to alter or set aside a decision or order of a Civil Court in any proceeding other than a suit. 'Suit' is defined in Section 3 of the Act as not including an appeal or an application. 'Suit', therefore, in the article does not include an application in a suit. The article applies to an order in any proceeding other than a suit and as an application is excluded from a suit,' it applies to an order in a proceeding on an application. If after the words ' other than a suit' the words or application in a suit' had been added to the article, it would be different. Now the order of the Munsif setting aside the sale was an order in a proceeding other than a suit and Article 13 is, in our opinion, applicable. If this were not so, we should have a period of one year allowed for the institution of a suit to have a sale in execution of a decree of a Civil Court set aside, while for a suit to have an order setting aside a sale cancelled, the period would be sis years. This was clearly, we think, never intended. This is unlike the case of Shankar Sarup v. Mejo Mal 29 C. 626 : 6 C.W.N. 776. In that case the suit was brought under the provisions of Section 295 of the Code of 1882, and it was not, therefore, necessary to set aside the order for distribution passed under that section.

5. We think that the decision of the learned Judge of this Court, which is in agreement with the decisions of the Courts below, is correct and dismiss this appeal with costs.


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