1. This is a plaintiff's, appeal arising out of a suit for recovery of possession of immovable property and mesne profits. The plaintiff also offered to let the defendants Nos. 1 and 2 redeem him if they chose to do so.
2. The facts of this case are as follows :--On the 5th of July, 1889, a mortgage-deed was executed by one Dharamjit ostensibly in favour of Tursi It is not now disputed that this Tursi was benamidar for Sobha Earn, the real mortgagee. On the 27th of July, 1896, Dharamjit sold the equity of redemption in the mortgaged property to Ganga Earn and Dhanwant. It may be stated that although the sale-deed stood in the name of these transferees, the mutation of names was subsequently effected in favour of the sons of these persons. It is not necessary at this stage to state all the circumstances under which the mutation of names was effected in that way, as that question has not been gone into by the court below.
3. On the 20th of December, 1909, Sobha Ram, the real mortgagee, brought a suit for sale against the mortgagor, Dharamjit, as well as his transferees, Ganga Ram and Dhanwant. He also impleaded a prior mortgagee, Badri. The sons of Ganga Ram and Dhanwant were, however, not impleaded. It appears from the judgment in that case that the position taken up in defence by Ganga Ram and Dhanwant was to put the plaintiff to strict proof of his allegations. It does not appear that there was any suggestion thrown out that the suit was defective on account of any non-joinder. The suit terminated in a decree for sale on the 6th of June, 1910, and the appeal preferred to the High Court by Ganga Ram and Dhanwant was also ultimately dismissed. On the 20th of August, 1913, in execution of the mortgage decree for sale, the property was put up for sale and purchased by the decree-holder Sobha Ram himself. The sale was confirmed and the sale certificate was granted to the decree-holder purchaser later on. The record of that proceeding is not before us, but it appears that after the sale had been confirmed, the auction-purchaser put in an application,- which, however, is not on the record, purporting to be under Order XXI, Rule 95. In this he impleaded Tursi Ram and Chhedu, the sons of Ganga Ram and Dhanwant, judgment-debtors, alleging that these latter persons were in possession of the property on behalf of their respective fathers. Objections were raised by the sons mainly on the ground that they were in possession of the property on their own account and were holding it under some sort of partition with their fathers. The learned Subordinate Judge, who had this application before him, came to the conclusion that Tursi Ram and Chhedu were in possession on their own account and not on behalf of the judgment debtors. He accordingly dismissed the application on the 3rd of July, 1914.
4. The plaintiff made an attempt to appeal from that order but his appeal was dismissed on the technical ground that no appeal lay from such an order.
5. After the expiry of more than one year from the date of the order passed by the Subordinate Judge, the present suit has been instituted by Sobha Ram for recovery of possession against Tursi and Chhedu as well as other defendants. The claim was principally contested by these two persons and the main defence put forward on their behalf consisted of a plea that the order passed on the 3rd of July, 1914, was an order under Order XXI, Rule 99, and that, therefore, the present suit was barred by Article 11A of the Limitation Act, as it had been brought more than one year after that order. It was also pleaded that the defendants were holding possession of this property under a private partition on their own account, and the claim was also barred by the 12 years' rule of limitation.
6. The learned Subordinate Judge did not record evidence in this case but took down the statements of the pleaders for the parties. These statements are printed at pp. 18 and 19 of the paper book. The pleader for the plaintiff admitted that after the auction-purchase the plaintiff had filed an application in the execution court for delivery of possession, impleading therein Tursi Ram and Chhedu, sons of Ganga Ram and Dhanwant, respectively, that both the sons filed objections which were allowed on the 3rd of July, 1914, and that the application for delivery of possession was disallowed against Tursi Ram and Chhedu. He alleged, however, that the two sons were either members of a joint Hindu family with their fathers and therefore bound by the decree against them, or, if they were separate, then there could be no transfer of property in their favour in the absence of a registered document. The pleader for the defendants stated that he had two objections to the suit. The first was the bar of Order XXI, Rule 99, read with Rule 103, of the Code of Civil Procedure, and the second was that the property in question had fallen to the share of the contesting defendants by a private partition effected between them and their fathers in 1901, and the claim, therefore was barred as against them.
7. The learned Subordinate Judge has dismissed the suit on the preliminary ground that the suit, having been filed more than one year after the order of the 3rd of July, 1914, was barred by Article 11A of the Limitation Act.
8. There can be no doubt that after an auction sale has taken place and it has been confirmed, the property vests in the auction-purchaser. The auction-purchaser can obtain delivery of possession against his judgment-debtor. For this, remedy is provided for under the Code. If, however, there is some person other than the judgment-debtor, who is not his representative and not holding the property on his behalf, and who resists or obstructs his possession, there are two remedies open to the auction-purchaser, namely, either to bring a regular suit for possession against that person, or to have recourse to a summary remedy by way of an application as provided in Order XXI, Rule 97. It is well-settled that the auction-purchaser is not bound to have recourse to the second remedy. It is open to him to do so if he wants to save time. Of course, if he does and fails, then his remedy to bring a regular suit is curtailed and the period of time is prescribed by Article 11A of the Limitation Act. It is clear, therefore, that unless the defendants can satisfy us that there is an order which falls under Rule 99 of Order XXI, which operates as a bar to the present claim, the regular suit certainly is not barred. The main question which we have to consider, therefore, is whether there was or was not an application made under Order XXI, Rule 97, and an order passed under Rule 99 rejecting that application.
9. It may be noted that although the application filed by the auction-purchaser is not on the record, yet the reference to it in the order passed by Mr. Moore shows clearly that the allegation of the auction-purchaser was that Tursi Ram and Chhedu were in possession of the property on behalf of their respective fathers, Ganga Ram and Dhanwant. The application itself purported to be one under Order XXI, Rule 95. It is clear that when an auction-purchaser wants possession not only against the judgment-debtor but also against some person holding property on his behalf, or claiming title under him, he can apply under Order XXI, Rule 95, and ask the court, if need be, to remove the other person who refused to vacate the same. In substance and in designation the application which was filed by the auction-purchaser was an application under Order XXI, Rule 95. In that application there was no express assertion that the auction-purchaser had made any attempt to obtain possession of this property, either through court or out of court, nor was there any suggestion that any obstruction or resistance had been offered to him while he was trying to obtain possession. It might, however, be inferred that Tursi Ram and Chhedu were impleaded because the auction-purchaser had an apprehension that when he went to take delivery, obstruction or resistance would be offered by these persons. I may also note that in the written statement which has been filed in this case by the two contesting defendants, there is no suggestion that prior to the making of that application there had been any attempt by the auction-purchaser to obtain possession or that there had been any obstruction or resistance offered by the defendants to the auction-purchaser's obtaining possession.
10. It cannot, however, be disputed that Tursi Ram and Chhedu did object and that Mr. Moore investigated into the matter and came to the conclusion that their objections were well-founded.
11. It has been strenuously contended by Dr. Sen, on behalf of the respondents, that a court has no jurisdiction to make any inquiry when an application under Order XXI, Rule 95, is made. His argument is that the court while acting under that rule is simply acting in its administrative capacity and not a judicial one, and that the order passed by the court must be passed automatically. Examining the rule, however, one is bound to hold that the court cannot pass an order delivering possession of the property to the auction-purchaser as against a person other than the judgment-debtor who is holding property on his behalf or claiming title under him, unless the court is satisfied that he is such a person. I fail to see how an order can be passed under that rule against such,, a person unless either that person admits that he holds the property in that capacity or the court is otherwise satisfied that he is holding as such. It may be that no thorough inquiry need be made under Rule 95, but there is nothing under that rule which prevents the court from being satisfied on prima facie evidence as to whether this other person is holding the property on behalf of the judgment-debtor and claiming title under him or not. If the court is satisfied that he is so holding the property, the order can be passed forthwith. If, however, the court comes to the conclusion that he is holding the property on his own account, there is no option to the court but to dismiss the application under Rule 95. Rule 97, however, contemplates that where the holder of a decree for the possession of immovable property, or the purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. It is clear to my mind that an application under Rule 97 cannot be made until the decree-holder or the auction-purchaser has been resisted or obstructed in obtaining possession of the property. It is only then that he files an application complaining of such resistance or obstruction. Of course no resistance or obstruction can be said to have taken place before any attempt to obtain possession has been made. It follows, therefore, to my mind that an application under Rule 95 asking for possession against a person alleged to be holding the property on behalf of the judgment-debtor is not necessarily an application complaining that resistance or obstruction has been offered by such a person. In my opinion the provisions of Rule 97 come into operation only when either the delivery of possession has been ordered by the court, or, at any rate, an attempt to obtain possession has been made by the decree-holder out of court. Unless either of these contingencies has occurred, it is difficult to see how it can be said that the auction-purchaser or the decree-holder has been resisted or obstructed in obtaining possession.
12. I have already stated that in the application filed before Mr. Moore, all that was alleged by the decree-holder was that the sons were holding the property on behalf of the judgment-debtors, and there was no suggestion that they had obstructed or resisted his possession. The order of Mr. Moore was not that an attempt had been made by the decree-holder out of court to obtain possession and he had been resisted, but that the allegation of the decree-holder that the two sons were holding the property on behalf of the judgment-debtors was not correct, and that they were actually holding the property on their own account. The application was within the scope of Order XXI, Rule 95, and in spite of any additional observations made by Mr. Moore, I am bound to say that his order must be deemed to be one dismissing the application made to him under Order XXI, Rule 95. It is impossible to say that the decree-holder's application was an application under Order XXI, Rule 97, when he did not make it under that rule, nor did he allege the facts of resistance or obstruction which are necessary to bring the application under that rule.
13. Under Rule 103 a party, not being a judgment-debtor, against whom an order is made under Rule 98, Rule 99 or Rule 101, may institute a suit to establish his right within the short period prescribed by the Limitation Act. I have, therefore, to see whether the order passed by Mr. Moore was an order under Rule 99. That rule requires the court to be satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor, claiming in good faith on his own account or on account of some person other than the judgment-debtor. There was no finding by Mr. Moore that any resistance had been occasioned by any person at all. A reference to Section 74 of the Code of Civil Procedure also indicates that the court proceeds after the purchaser has been resisted or obstructed in obtaining possession of the property by some person holding it on behalf of the judgment-debtor. The application under Rule 97 is separate and distinct from that under Rule 95, and has to be filed within 30 days of the resistance or obstruction, as provided in Article 167 of the Limitation Act. I am, therefore, satisfied that it is impossible to hold that the order passed by Mr. Moore was an order under Rule 99 dismissing an application complaining of resistance or obstruction. If the order was not under that rule, then it is obvious that Rule 103 would not apply, nor would Article 11A of the Limitation Act apply. It is important to note that under Article 11A of the Limitation Act the period of one year begins to run from the date of the order made upon an application by the purchaser of the property, complaining of resistance or obstruction to the delivery of possession thereof. Before, therefore, the defendants can defeat the plaintiff's claim, they have got to show that there is an order against the plaintiff, more than one year old, under which an application complaining of resistance or obstruction to the delivery of possession was dismissed. In my opinion there is no' such application or order on the record. The order passed was really an order under Order XXI, Rule 95. Even if Mr. Moore went beyond the scope of that rule, which I am by no means prepared to admit, his order would not come under Rule 99.
14. The learned Subordinate Judge has not decided the other questions which arose in the case and has thrown out the suit on this preliminary ground alone. I am, therefore, of opinion that this appeal should be allowed, the decree of the lower court set aside and the case sent back to the court below for disposal according to law.
Kanhaiya Lal, J.
15. The simple question for consideration in this appeal is whether the suit was barred by Order XXI, Rule 103, of the Code of Civil Procedure read with Article 11A of the Indian Limitation Act. The plaintiff was the auction-purchaser of certain property which had been sold in execution of his decree to which Ganga Ram and Dhanwant, the fathers of the contesting defendants respectively, were parties. The plaintiff sought to obtain possession over the property purchased by him by an application made under Order XXI, Rule 95, of the Code of Civil Procedure to the court which held the sale. In that application he impleaded the present defendants, suggesting that they held possession on behalf of the judgment-debtors. The court made some sort of an inquiry into that allegation and came to the conclusion that they were in possession in their own right and not on behalf of the judgment-debtors and rejected the application.
16. The present suit was filed by the plaintiff for possession of the disputed property with mesne profits; and it was also prayed that if the defendants wanted an opportunity to redeem the property, they may be ordered to pay to the plaintiff the money due to him on the mortgage in satisfaction of which the property was sold, within such time as the court may allow. So far as the latter relief is concerned, it was clearly outside the scope of the inquiry contemplated by Rule 95, and Order XXI, Rule 103 of the Code of Civil Procedure has, therefore, no application.
17. In regard to the claim for possession, it is urged on behalf of the defendants that the order of the court refusing to deliver possession against the defendants was an order passed under Order XXI, Rule 99, of the Code of Civil Procedure and that Rule 103, was, therefore, applicable. Rule 99 contemplates that there must be a previous complaint under Rule 97 of a resistance or obstruction offered to the auction-purchaser in obtaining possession of the property purchased by him. Judging from the terms of the application recited in the order above referred to, no such complaint appears to have been made by the auction-purchaser at the time. All that he had suggested was that the defendants held possession on behalf of the judgment-debtors, their fathers, and that they were liable to be ejected by an order under Rule 95. Rule 95 authorizes the court which held and confirmed the sale to order delivery to be made to the auction-purchaser, on his application, by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf, in possession of the property purchased, and, if need be, by removing any person who refuses to vacate the same. The person who refuses and is to be removed may be the judgment-debtor or a person holding possession on his behalf, or a person claiming under a title created by the judgment-debtor subsequently to the attachment which resulted in the sale. Before a court can pass an order for his removal, the court has, however, to be satisfied that he belongs to one or other of the categories above mentioned; and in order to satisfy itself that he does belong to one or other of these categories, the court may have to make such prima facie inquiry as the circumstances of the case may require. That was the nature of the inquiry which the court appears to have made in the above proceeding; and though it went on to say that the defendants appeared to hold the property on their own behalf, the order passed cannot be treated as an order passed on a complaint of resistance or obstruction within the meaning of Rules 97 and 99 of the said order. Article 167 of the Indian Limitation Act provides a limitation of 30 days from the date of the obstruction or resistance for making a complaint under Rule 97. The filing of the complaint is a condition requisite to give the court jurisdiction to make an inquiry under Rules 98 and 99 and to pass an order which may have the effect ascribed to it by Rule 103. Article 11A of the Indian Limitation Act is in terms applicable only when an order has been passed in terms of the above provisions upon an application by an auction-purchaser for the possession of immovable property sold in execution of a decree, complaining of the resistance or obstruction to the delivery of possession thereof. There was no actual resistance or obstruction in this case; in fact there was no allegation of any such resistance or obstruction having been offered to the auction-purchaser for possession. It was merely suggested that the defendants were holding possession on behalf of the judgment-debtors, their fathers, and that allegation was inquired into and found against the auction-purchaser, with the result that his application was thrown out. Order XXI, Rule 103, of the Code of Civil Procedure has, in these circumstances, no application to the case.
18. Even where an auction-purchaser is resisted in obtaining possession by a person claiming to hold possession in his own right, it is open to the auction-purchaser either to file a complaint under Order XXI, Rule 97, or to recover possession by a suit or otherwise, as he may be advised. A complaint under Order XXI, Rule 97, is not his sole or exclusive remedy. Rule 95 contemplates a refusal by a person of the class described before a process in execution is issued. Rule 97 contemplates an actual resistance or obstruction offered to the auction-purchaser in obtaining possession by such process. The object of the former provision is to uphold the authority of the court as against the judgment-debtor or any other person holding on his behalf. The object of the latter provision is to protect the public peace by authorizing a summary inquiry into the rights of the contending parties, other than the judgment-debtor, in order to determine what should be immediately done, leaving the dissatisfied party, not being the judgment-debtor, to seek his remedy by a regular suit. If the auction-purchaser does not choose to adopt that course or, in other words, to file a complaint of actual resistance or obstruction by a third person, no bar of the kind suggested can stand in operation, against him. As pointed out in Hargolal v. Chandu Lal (1922) 69 Indian Cases 557, if an auction-purchaser is resisted by a person who claims the right to hold possession in his own right, the execution court is bound to stay its hand unless and until the decree-holder makes an application under Order XXI, Rule 97, of the Code of Civil Procedure, complaining of the resistance within the time allowed by law; and it is only when such a complaint is filed that an investigation can be made, resulting in the consequences contemplated by Rule 103. There is nothing in the circumstances, so far as they have been disclosed in the present case, to indicate that any complaint was filed under Order XXI, Rule 97, or that an order was passed on. such a complaint. The order was merely an order under Order XXI, Rule 95, by which the auction-purchaser was refused relief because the conditions precedent to give the court jurisdiction to pass an order against a person, who was not the judgment-debtor, were not found to exist. I agree, therefore, with the order proposed by my learned brother Sulaiman, J.
19. I find myself in the unfortunate position of being unable to agree with my learned colleagues. I shall briefly indicate the reasons of my dissent, out of respect for my learned brothers.
20. The facts which are necessary for the disposal of the point of law raised are briefly these. The appellant, in execution of a decree for sale obtained by himself, purchased the property mortgaged. Among the judgment-debtors were two persons, namely, Ganga Ram and Dhanwant. After obtaining a sale certificate, the appellant put in an application before the learned Subordinate Judge of Muttra, apparently making two more persons, Tursi and Chhedu, also parties to it. Tursi and Chhedu were the respective sons of Ganga Ram and Dhanwant. They came and said that they were in possession in their own right and not as claiming under their fathers. The learned Subordinate Judge held that Tursi and Chhedu were real claimants on their own account, and accordingly disallowed the application for delivery of possession made by the appellant. This was on the 3rd of July, 1914. Within one year of this order, no suit was brought by the appellant. On the present suit being instituted on the 8th of June, 1920, the plaintiff was met with a plea that the suit was barred under the provisions of Article 11A of the Indian Limitation Act. The question is whether the suit was really so barred as found by the lower court.
21. Having given the case my anxious consideration, I have come to the conclusion that the suit was barred.
22. If we look to the provisions of Rules 94 to 103 of Order XXI of the Code of Civil Procedure, we will find this. Under Rule 94 ah auction-purchaser gets a certificate of sale which declares his title to certain properties. Rules 95 and 96 lay down the method by which the auction-puchaser is to be put in possession of the property. Rule 95 says that where the judgment-debtor himself is in possession or where some person claiming under him is in possession, i.e,, where a person bound by the decree and liable to be ejected physically is in possession, delivery of possession would be made by removing the person in possession. Rule 96 provides that where a person like a tenant is in possession, i.e., a person who is not liable to be ejected on account of the sale, delivery of possession should be made by several modes referred to therein. Naturally the question would arise how is the court to know which method would be applicable and whether the person who is actually in possession is liable to be removed or not. This machinery is provided, not by the Rules 95 and 96, but by the Rules 97 to 100. The machinery is this. The person who is in possession is found either to resist or obstruct in the delivery of possession. The auction-purchaser says that those persons who are resisting or obstructing are not entitled to do so and asks the court to remove the resistance or obstruction and to put the auction-purchaser in possession. The court thereupon hears the parties and decides one way or the other. If it decides that the person in possession is so on account of the judgment-debtor, or the judgment-debtor himself is in possession, it would order the removal of such person from the property. If, on the other hand, the court finds that the person in possession is so on his own behalf and not on behalf of the judgment-debtor, the court would disallow the application of the auction-purchaser. The auction-purchaser would then have a remedy by a suit; but such a suit must be brought within a short period of limitation, as provided in Article 11A of the Limitation Act.
23. It is argued that in this case there is no application or complaint by the auction-purchaser to remove the sons of the judgment-debtors, namely, Tursi and Chhedu, from the property, and, therefore, there was no inquiry under Rule 97, and, therefore, there was no order under Rule 97. It is further alleged that whatever inquiry was made, it was made under Rule 95. I am afraid I cannot agree. I have already stated that Rule 95, and Rule 96 for the matter of that, does not contemplate any inquiry whatsoever. It has been urged by the learned Counsel for the appellant that the court made no inquiry under those rules, and if, as a matter of fact, an inquiry has been made, the result of that inquiry cannot have the same effect as the result of an inquiry under Rule 97 and Rule 99. In the first place, I would say that it is not expedient and proper to assign an adjudication which undoubtedly took place, as having been made under no provision whatsoever of the law. If an inquiry can be referred to them that inquiry must be taken to have been made under the provisions of law. Presumably the court knew law and the parties had legal assistance. There is, therefore, no warrant for urging that the inquiry that was made was made under no provision whatsoever of the law. I would not, however, rest my judgment simply on this. I am clearly of opinion that the case did come under Rule 97. In Rule 97 two words have been used, namely, 'resistance' and 'obstruction' Those words have not the same meaning, otherwise the Legislature would be guilty of tautology. Obstruction is a physical act. Resistance is moral and may sometimes be physical. We speak of resisting an appeal. A respondent's counsel resists an appeal. This does not imply that he stands up to fight physically the counsel for 'the appellant. Referring to Murray's English dictionary, we find that the word 'resist' is used in the sense of striving against a moral and mental influence and against something proposed to be done or likely to happen, a law or command etc. Thus, the word 'resistance' has been used in order to show that there may be a resistance to the auction-purchaser obtaining delivery of possession, without there being any necessity for the auction-purchaser going to the spot. When the auction-purchaser makes an application against some persons who are in possession and those persons come up and say that they are not liable to be ejected and the decree-holder asks for an inquiry, he really asks for an inquiry against the resistance (not obstruction) caused by the persons in possession. When it was proposed by the auction-purchaser, in this particular case, that the court should remove Tursi and Chhedu from possession, on the allegation that they were in possession on behalf of their fathers, the judgment-debtors, he really called upon them to say whether they submitted to the auction-sale or they proposed to resist it. They came and resisted the applicant. What they did, therefore, was fully within the meaning of Rule 97 to resist the auction-purchaser in obtaining delivery of possession. As I have already said, it was not necessary for resistance on the part of Tursi and Chhedu that the decree-holder should have gone to the spot previously. The further fact that the application was made for delivery of possession against these persons shows that resistance was anticipated. When these men came up and lodged a protest, what they did was actually to resist the applicant, or, in other words, to resist the decree-holder in obtaining possession of the property. When the decree-holder invited the court to adjudicate upon the question whether he should get possession or whether the application for possession should be disallowed, the court did adjudicate and hold that these persons in possession were in possession on their own account. Thus the spirit of the law and the letter of the law were both satisfied.
24. In the circumstances, in my opinion, the appellant was bound to bring his suit within one year of the 3rd of July, 1914. He has not done so. His suit was rightly dismissed by the court below. T would, therefore, dismiss the appeal.
25. The appeal is allowed, the decree of the lower court set aside, and the case is sent back to the court below for disposal according to law. The costs of this appeal will abide the event.