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Syed Ali Mohammad Shah and ors. Vs. Ram Narain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.797
AppellantSyed Ali Mohammad Shah and ors.
RespondentRam Narain
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 99, 100, 101, 103 - limitation act (ix of 1908), schedule i, article 11--execution--application by auction-purchaser for delivery of possession--dismissal for default--objections--suit for declaration--limitation. - .....matter was passed by the high court on the 12th of may 1913. after the passing of this order the present plaintiffs, who were the auction-purchasers, applied for delivery of possession. they made ram narain, a party to their application, because he had put forward a claim in respect of the property and had applied to have the sale set aside. on the 11th of august 1913, the court dismissed the application on the ground that the present plaintiffs, the applicants, were absent but in the course of its judgment it made certain observations as to the right of ram narain which were in favour of ram narain. the fact, however, remains that the application was dismissed for default on the ground of the absence of the applicants. after the passing of this order the plaintiffs again applied for.....
Judgment:

1. The facts out of which this appeal 'arises are these: One Hasan Shah owned certain shares in a number of shops which were mortgaged to one Ram Chander Sarup. Ram Chander Sarup obtained a decree on his mortgage and caused the mortgaged property to be sold by auction. This property was' purchased by the present plaintiffs. After their purchase the plaintiffs applied for delivery of possession. In the meantime the defendant Ram Narain had purchased certain property, which he alleged was distinct from the property now claimed, in execution of a simple money-decree. He raised certain objections in respect of the auction sale at which the plaintiffs had purchased and applied to have the sale set aside. Those objections were disallowed and the final decision in that matter was passed by the High Court on the 12th of May 1913. After the passing of this order the present plaintiffs, who were the auction-purchasers, applied for delivery of possession. They made Ram Narain, a party to their application, because he had put forward a claim in respect of the property and had applied to have the sale set aside. On the 11th of August 1913, the Court dismissed the application on the ground that the present plaintiffs, the applicants, were absent but in the course of its judgment it made certain observations as to the right of Ram Narain which were in favour of Ram Narain. The fact, however, remains that the application was dismissed for default on the ground of the absence of the applicants. After the passing of this order the plaintiffs again applied for delivery of possession and the Court made an order for delivery of possession, on the 22nd of August 1913. Possession was delivered to them by the Court Amin, and thereupon Ram Narain put in an application on the 28th of August 1913, purporting to- make the application under Rules 99, 100 and 101 of Order XXI of the 1st Schedule to the Code of Civil Procedure. The Court of first instance dismissed his application but upon an application for revision to this Court the case was remanded and was tried by the Court below which on the 12th of December 1914, granted his objection and ordered him to be restored to possession. It was in consequence of this order that the present suit was instituted by the plaintiffs for a declaration of their right to the property in dispute, as auction-purchasers. This suit was apparently brought in pursuance of the provisions of Rule 103 of Order XXI. The Court of first instance dismissed the suit applying Article 11 of the first Schedule to the Limitation Act. The lower Appellate Court affirmed that decision but applied a different Article. In our opinion both the Courts below were wrong. If the order of the 11th of August 1913 be regarded as ant order which cast a cloud upon the plaintiff's title, the present suit for a declaration of right having been brought within six years of the date of that order is within time. If the order of the 12th of December 1914 be regarded as an order passed under Rule 101 of Order XXI, the plaintiff's right to bring the present suit accrued upon the making of that order. The suit was brought within two days of the passing of that order. It is conceded that if limitation is to be computed from the date of the order last mentioned, the suit is within time. It is contended, however, that limitation should be computed from the 11th of August 1913. We do not agree with this contention. In the first place that order was merely one dismissing the application for default of appearance. The plaintiffs had no opportunity of establishing their right and no adjudication of title could have been made in their absence. Besides this, they admittedly obtained an order for delivery of possession and possession was delivered to them in pursuance of that order. It is in consequence of this delivery of possession that Ram Narain made his application of the 28th of August 1913. We think that limitation for the present suit ought to be computed from the 12th of December 1914, when Ram Narain's application was granted. The result is that we allow the appeal, set aside the decree of both the Courts below and remand the case to the Court of first instance with directions to re admit the suit under its original number in the register and to dispose of it according to law. Costs here and heretofore will abide the result.


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