Banerji and Aikman, JJ.
1. The suit out of which this appeal has arisen was brought by the appellant to recover possession of a piece of land and a house, together with the materials of the house and the trees standing on the land, by establishment of his right thereto, Disputes having arisen between the parties concerning the said property, proceedings were held by the Magistrate of Muttra under Chapter XII of the Code of Criminal Procedure, 1882. The Magistrate, being unable to satisfy himself as to which of the parties was in actual possession, made an order under Section 146 of that Code for the attachment of the property. This order was passed on the 13th of September 1887. The present suit was instituted on the 7th of September 1893. The Court of First Instance decreed it, but the Lower Appellate Court dismissed it as barred by limitation. The only question which we have to determine in this appeal, therefore, is whether the suit was brought after the expiry of the period of limitation prescribed for it.
2. The learned Judge of the Court of First Appeal was of opinion that, as the Government was not made a party to the suit, it could only be deemed to be one for a declaratory decree merely, and, applying Article 120 of the second schedule of the Indian Limitation Act, 1877, held the claim to be time barred.
3. It is conceded by Mr. Conlan, the learned Counsel for the respondent, that this view of the Court below is erroneous. It has, in our opinion, been rightly contended that the applicability of the law of limitation depends upon the frame of the suit as brought, and not upon the form in which it should have been instituted. We are also of opinion that the Government was not a necessary party. By virtue of the order passed by the Magistrate under Section 146 of the Code of Criminal Procedure, the property was to remain under attachment until a competent Civil Court had determined the rights of the parties thereto or the persons entitled to possession thereof. The object of the order is to prevent a breach of the peace, and the effect? of it is to hold the property for the rightful owner until he has established his title.
4. Mr. Conlan contends that the suit is governed by Article 47 of Schedule II of Act No. XV of 1877, and that as it was brought after the lapse of three years from the date of the order passed under Section 146 of the Code of Criminal Procedure, it is beyond time.
5. Article 47 provides a limitation of three years for a suit 'by any person bound by an order respecting the possession of property made under the Code of Criminal Procedure, Chap. XL * * * or by any one claiming under such person, to recover the property comprised in such order.' Chapter XL of the Code of 1872, corresponds to Chap. XII of the present Code. An order under Section 146 is an order made under Chap. XII. It is also an order binding on the parties to the proceeding in which it was made. Is it 'an order respecting the possession of property?' For, if it is so, Article 47 applies, and the present suit is barred by limitation. We are of opinion that an order made under Section 146 for the attachment of the property in dispute is not an order respecting the possession of such property. An order for attachment may be passed either when the Magistrate decides that none of the parties is in possession or when he is unable to decide which of them is in possession. The order contemplated by Article 47 is, in our opinion, an order whereby one of the parties is adjudged to be in possession and is maintained in possession until, evicted in due course of law, that is to say, an order which is in favour of one of the parties and adverse to the other. It could not have been the intention of the Legislature that where the Magistrate, by reason of his inability to satisfy himself as to the possession of either of the parties, or by reason of his deciding that neither of them is in actual possession, attaches the property in dispute, in order to prevent a breach of the peace, neither party would be entitled to get back the property unless he instituted a suit within three years from the date of the order, and that in the event of neither of the parties bringing a suit within that period the property would be forfeited to Government. This would be the result were we to hold that an order under Section 146 is governed by Article 47. Our view is supported by the ruling of this Court in Chujmull v. Khyratee N.W.P. H.C. Rep., 1868, p. 65, and of the Madras High Court in Akilandammal v. Periasami Filial I.L.R. 1 Mad., 309. In the former case it was held that where the Magistrate found that neither of the parties at issue was in possession, and for that reason directed the attachment of the property, the order was not one respecting the possession of property to which the three years rule of limitation applied. In the latter case, a similar conclusion was arrived at in respect of an order of attachment made by reason of the Magistrate's inability to satisfy himself as to which of the parties was in possession. Those cases were decided, respectively under Act No. XIV of 1859, and Act No. IX of 1871, the provisions of which in this respect were the same as those of Article 47 of Schedule II of Act No. XV of 1877. Had the Legislature intended to lay down a different rule from that enunciated in the two rulings referred to above, Article 47 would have been worded in terms different from the corresponding provisions of the Acts of 1859 and 1871.
6. It may be that an order under Section 147 of the Code of Criminal Procedure is intended to be governed by Article 47 and that may be the reason why that article was not in express terms limited to orders under Section 145. We, however, do not decide the point. In our opinion Article 47 does not apply to an order under Section 146, and we hold that the claim is not barred by the provisions of that article. The article applicable is either 142 or 144.
7. We allow the appeal with costs, and, setting aside the decree below, remand the case to the Lower Appellate Court, under Section 562 of the Code of Civil Procedure for trial on the merits.