1. This is an appeal under Clause 10 of the Letters patent from a decision of Sharma, J., where-by the learned Judge setting aside the decision of the first appellate Court dismissing a suit filed by the respondent Shri Kishandas for the reason that it was barred by time under Article II of the Limitation Act, remitted the matter to the said Court with a direction that it should re-hear the appeal preferred before it by the plaintiff on points besides the one decided by the learned Judge and dispose of it according to law.
2. The material lacts are that in execution proceedings of a decree held by one Ramchandra against Nakta, the father of the respondents Nos. 2 to 4, a house along with some land situated in Gwalior, was sold on 21st April, 1954 and purchased by the appellant Gole. This property had been mortgaged by Nakta with the plaintiff-respondent Shri Kishandas. On 24th April, 1954, Shri Kishandas presented an application before the executing Court objecting to the sale and for setting aside the same on the ground that as the property had been mortgaged with him, it could not be attached and sold in execution of decree held by Ramchandra. On 18th September, 1954, this application was dismissed by the Civil Judge, Second Class, Gwalior, executing the decree held by Ramchandra. The ground of rejection was that an executing Court had no jurisdiction to entertain a claim under Order 21 Rule 58 Civil Procedure Code after the execution sale had taken place. In adopting this course, the learned Civil Judge followed the decision of the Madhya Bharat High Court in Shrichand v. Santosh Kumar, AIR 1953 Madh-B 264, which he was bound to follow.
Subsequently, on 24th December, 1957, Shri Kishandas instituted a suit out of which this appeal arises claiming a decree for Rs. 1000/- besides interest and costs against the appellant and the respondents Nos. 2 to 4 a decree for the sale of the mortgaged property for the realisation of that amount. After determining the various issues framed by him in the suit, the learned Civil Judge,. Second Class, Gwalior, dismissed the suit taking, the view that it was barred by time under Article II of the Limitation Act inasmuch as it was filed after a period of one year from 18th September, 1954, the date on which the application of the plaintiff objecting to the sale had been rejected. His decision was upheld in appeal by the First Additional District Judge, Gwalior.
In the second appeal preferred by the plaintiff, the learned Single Judge held that as the plaintiff's objection to the attachment and sale of the property was not entertained and investigated by the executing Court, the dismissal of that objection was on the ground of want of jurisdiction, and, therefore, Article 11 of the Limitation Act, was not attracted and the plaintiff was entitled to file a suit within the period of limitation provided under 'the general law'. He did not indicate-the article of the Limitation Act governing the plaintiff's suit.
3. The question that arises for determination in this appeal does not present any difficulty. It is this: Whether when an order is passed by the executing Court on an objection under Order 21, Rule 58, Civil Procedure Code rejecting it on the-ground that it had no jurisdiction to entertain the claim as the sale had taken place, does the order of rejection require the objector to file a suit under Order 21, Rule 63, Civil Procedure Code-within the period of one year prescribed by Article II of the Limitation Act. Order 21 Rule 63 says that 'Where a claim or an objection is preferred, the party against whom an order is made may institute a suit.' Article II also speaks of a suit by a person against whom any of the orders mentioned in that article has been made. It will be seen from the wording of these provisions that the essential requirement of a suit under Rule 63 attracting Article II of the Limitation Act is that there must be 'against' the person instituting the suit an order with regard to the claim preferred by him or an objection made to the attachment of the property attached in execution of a decree.
For an order 'against' the claimant it is not necessary that the order must involve an adjudication on the merits of the claim after investigation. When the Court entertains and receives an objection for consideration and disposes of it according to law, it must be regarded as making an order disposing of the objection in favour of one party and necessarily against the other. Thus even an order dismissing the claim for default would be an order against the person preferring the claim. On the other hand, if a person objecting to an attachment does not later on desire an investigation of his claim and the objection is not pursued, then there is no order against him within the meaning of Order 21, Rule 63. So also, when an objection to the attachment of a property is made after it has been sold and the Court dismisses it on the ground that the sale having taken place the attachment ended and it had no jurisdiction to entertain the claim, there is no order under Order 21, Rule 58 'against' the party. When the Court does not entertain the objection at all for want of jurisdiction, it cannot be held that the order refusing to entertain the objection is an order of the Court disposing of the objection after admitting it for consideration.
The decision in Chetanlal v. Lalji, ILR (1938) Nag 276 : (AIR 1937 Nag 170) fully supports the view that when the Court refuses to entertain an objection under Order 21, Rule 58 Civil Procedure Code, there is no order against the claimant within the meaning of Rules 58 and 63 of Order 21 Civil Procedure Code. This view is also fortified even by the decisions in Cannanore Bank Ltd. v. P. A. Madhavi, ILR (1942) Mad 336 : (AIR 1942 Mad 41) (FB) and Jagjivan Dhondiram v. Gopal Vinayak, ILR (1955) Bom 491 : (AIR 1955 Bom 397) relied on by the learned counsel for the appellant. In the Madras case, a Full Bench of the Madras High Court, while holding that Order 21, Rule 63 applies to all orders which are against the claims preferred under Rule 58, pointed out that the test to see whether an order is under Rule 63 is whether the order is against the claimant or the decree-holder but that does not mean that the order music involve an adjudication on the merits after investigation. The Full Bench also expressed the following opinion--
'Even an order of dismissal for default will fall within the rale; so long as it remains in force it is obviously adverse to the claimant. But if the person objecting to the attachment does not ask for his claim to be investigated and the order on the petition is merely that it be recorded, it cannot be said that this is an order 'against' him. In such a case the application will not fall within Rule 58: See P. R. Ayya Pattar v. Manaklal, 1919 Mad WN 805 : (AIR 1920 Mad 822). Again the petition may contain a prayer not contemplated by Rule 58, or it may have been presented after the Court has sold the attached property and therefore the Court has ho longer jurisdiction to entertain it. The dismissal of such a petition can scarcely be regarded as an adverse order: See Abdul Kadir Sahib v. Somasundaram, Chettiar, ILR 45 Mad 827 : (AIR 1923 Mad 76).'
In the Bombay case ILR (1955) Bom 491 : (AIR 1955 Bom 397), Gajendragadkar and Shah, JJ., distinguished the decision of the Bombay High Court in Ningauda v. Nabisaheb, ILR (1942) Bom 1536 : (AIR 1942 Bom 263) where Divatia, J., observed--
'To attract the applicability of Order 21 Rule 63 the order complained of must relate to the merits of the claim and must not be passed on the preliminary ground that the Court cannot enquire into the merits of the claim.'
The learned Judges of the Bombay High Court in Jagjivan Dhondiram's case, ILR (1955) Born 491 : (AIR 1955 Bom 397) (supra) said--
'But in examining the effect of the decision we cannot overlook the facts on which Divatia, J., came to decide the matter.
'In that case certain property had been attached. Thereafter an application had been made challenging the validity of the said attachment. Pending the proceedings in this application, the property came to be sold, and the application was, therefore, dismissed on the ground that sines the property had - been sold and attachment had come to an end there was no attachment in law and in fact, and therefore the question as to whether attachment had been lawfully levied or not did not survive.
'It seems to us that on these facts 'it would have been impossible to allow' the bar of Rule 63 to be raised against the party, because the final decision was that there was nothing to consider since the attachment itself had lapsed as a result of the auction sale which had taken place pending proceedings in that application itself.''
(underlining (here in ' ') is ours.)
Thus the view expressed by Divatia, J., in ILR (1942) Bom 636 : (AIR 1942 Bom 263) (supra) that Order 21 Rule 63 does not apply when the claim is rejected on the preliminary ground that the Court cannot enquire into the merits of the claim, was approved in the later decision of the Bombay High Court in Jagjiyan Dhondiram's case, ILR (1955) Bom 491 : (AIR 1955 Bom 397) (supra). It is not necessary to refer to other cases which are in the same line.
4. The decision in Ambica Prosad v. Firm Soorajmull Nagarmull, AIR 1939 Cal 620, on which the original Court and the Court of Additional District Judge, Gwalibr, relied is distinguishable by the fact that in that case the mortgagee's objection under Order 21 Rule 62 Civil Procedure Code was entertained but was later rejected on account of his failure to produce the mortgage-bond. As the objection was entertained but later rejected as the mortgagee failed to substantiate it, there was an order 'against' him under Order 21 Rule 63. The Calcutta case is not a case where the Court declined to entertain the objection under Order 21 Rule 62 on the ground of jurisdiction. In the other case, namely, Nimba Ganba v. Narayan Paikaji, AIR 1948 Nag 369, the mortgagee's objection under Order 21 Rule 58 was rejected on the ground that it was made after a considerable delay and not on the ground that the Court had no jurisdiction to entertain it. Learned counsel for the appellant also referred us to Govind v. Dhondba, ILR (1945) Nag 571 : (AIR 1945 Nag 257). That decision is not in point here. It holds that it in incumbent on the mortgagee, whose objection has been dismissed under Order 2r Rule 58 proviso, to institute a suit within one year under Order 2r, Rule 63 Civil Procedure Code read with Article II of the Limitation Act; and that it is not necessary for a mortgagee to file an objection under Order 21, Rule 58, but if he does so and his objection is dismissed, he must suffer the disadvantage of that dismissal, that is, he ought to institute a suit within one year to have his right established. It is clear that in Govind's case, ILR (1945) Nag 571 : (AIR 1945 Nag 257) (supra) the objection was dismissed on the ground of delay and not on the ground that it could not be entertained for want of jurisdiction.
5. A reference must, however, be made to a decision of this Court in Ramchandra v. Kayam Hussain, AIR 1938 Nag 475 where the objector, who made an objection to attachment under Order 21 Rule 58 Civil Procedure Code after the sale of the property, instituted a suit under Order 21 Rule 63 after his objection had been rejected on the ground that it could not be made after sale. Niyogi, J., expressed the view that an objection to attachment could be made even after the sale and the dismissal of the objection by the executing Court on the ground that it was not tenable must be regarded as under Rule 61 and consequently the disappointed objector was entitled to file a suit under Order 21, Rule 63, C. P. C. This decision, in so far as it holds that the refusal to entertain an objection on the ground that it could not be made after sale amounted to dismissal of the objection under Order 21, Rule 61, is not in consonance with the decision in ILR (1938) Nag 276: AIR 1937 Nag 170. In Chetanlal's case, ILR (1938) Nag 276: AIR 1937 Nag 170 the objection to attachment of property was not entertained on the ground that the case had been transferred to the Collector. This order was held by Bose, J. as one rejecting the objection on the ground that the Court had no jurisdiction to entertain it. The position is no different when the objection is not entertained on the ground that it cannot be made after sale of the attached property. In connection with the question whether the objector's suit falls under Order 21, Rule 63 and is governed by Article 11, Limitation Act, the point whether the executing Court had or had not the jurisdiction to entertain the objection is not material.
The real question is whether the executing Court did or did not in fact entertain the objection or refused to entertain it on the ground that it had no jurisdiction to entertain it. Even it the Court rejected the objection on the ground that it could not be made after sale of the property, though according to the decisions of this Court it could be made, still the order of the executing Court rejecting the objection would be one refusing to entertain the objection on the ground that it had no jurisdiction to do so. As pointed out earlier, an order refusing to entertain the objection on the ground of lack of jurisdiction is not an order under Order 21, Rule 63, C. P. C. against the party.
6. Here, the objection was rejected by the executing Court on the ground that it had no jurisdiction to entertain it as the property had already been sold. Thus there was no order 'against' the party attracting Order 21, Rule 63 and making it incumbent on the plaintiff to file a suit within a year from the date of the order rejecting his objection under Order 21, Rule 58, C. P. C. In our judgment, the plaintiff-respondent's suit is governed not by Article 11 but by Article 132 of the Limitation Act. Neither the learned Single Judge nor the Additional District Judge determined the question whether the plaintiff's suit was within the period of limitation prescribed by Article 132, Limitation Act. The learned Single Judge should have, therefore, directed the learned Additional District Judge to rehear the plaintiff's appeal not only on the points remaining undecided but on all points including the question of limitation having regard to the provisions of Article 132 of the Limitation Act.
7. For the foregoing reasons, our conclusion is that the plaintiff-respondent Sri Kishandas' suit does not fall under Order 21, Rule 63, C. P. C. and is not governed by article u of the Limitation Act. The question whether the suit has been filed within the period of limitation laid down in Article 132, Limitation Act shall now be decided by the Additional District Judge, Gwalior, along with other points arising in the appeal preferred before him by the aforesaid plaintiff-respondent. The result is that the decision of the learned Single Judge is upheld and this appeal is dismissed. In the circumstances of the case, was leave the parties to bear their own costs.