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Gulab and ors. Vs. Mutasaddi Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All247; 50Ind.Cas.748
AppellantGulab and ors.
RespondentMutasaddi Lal
Excerpt:
limitation act (ix of 1908), schedule i, article 11 - civil procedure code (act v of 908), order xxi, rule 63,--attachment--objection, dismissal of, for default of objector--title suit-limitation 3. - - it seems to us quite clear under the circumstances of the present case that an order was made 'against' the vendor of the plaintiff and that the plaintiff can be in no better position than his vendor......disallowed 'in the absence' of the objector there had been no investigation, and, therefore, the article of limitation did not apply. we think the court below was wrong. it is admitted that if the objector had appeared on the 2nd of september 1916 (the day on which his objection was disallowed in his absence) and stated that he could not sustain his objection, then the article would have applied. we find it impossible to hold that where an objector comes forward and says that he cannot sustain an objection, the article applies, while if he takes care to remain absent, the article will not apply. it is quite clear that the policy of the law is that these objections should be speedily decided and that there should be a shirt period of limitation allowed for the party against whom the.....
Judgment:

1. The facts connected with this appeal are shortly as follows: More than a year before the institution of the present suit certain property was attached in execution of a decree. An objection was put forward by the plaintiff's vendor that the property was not the property of the judgment-debtor, and, therefore, was not liable to attachment. The objector not only stated the nature of his objection but he made an application to summon his witnesses. Upon a date fixed for the hearing of the case he was not present but the case was adjourned until another date to enable him to appear. Upon the adjourned date he did not appear, and the Court below made an order disallowing the objection 'in the absence' of the objector. The present suit was then instituted by a purchaser from the objector more than a year after the objection of his vendor had been disallowed in the manner stated. The Court of first instance held that the suit was barred by the provisions of Article 11 of the Limitation Act. The lower Appellate Court reversed the decree and remanded the case, holding that inasmuch as the objection had been disallowed 'in the absence' of the objector there had been no investigation, and, therefore, the Article of Limitation did not apply. We think the Court below was wrong. It is admitted that if the objector had appeared on the 2nd of September 1916 (the day on which his objection was disallowed in his absence) and stated that he could not sustain his objection, then the Article would have applied. We find it impossible to hold that where an objector comes forward and says that he cannot sustain an objection, the Article applies, while if he takes care to remain absent, the Article will not apply. It is quite clear that the policy of the law is that these objections should be speedily decided and that there should be a Shirt period of limitation allowed for the party against whom the order was made. It seems to us quite clear under the circumstances of the present case that an order was made 'against' the vendor of the plaintiff and that the plaintiff can be in no better position than his vendor. Accordingly we allow the appeal, set side the order of the Court below and restore that of the Court of first instance with costs.


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