G.C. Das, J.
1. The unsuccessful plaintiff filed this appeal against an order of the District Judge Cuttack dated 19-10-195-1, dismissing his suit. Of the parties to this litigation, defendant 1 was the auction-purchaser of a part of the holding measuring 1.045 acres. Defendants 4 and 5 are the first cousins of the plaintiffs deceased husband and defendants 2 and 3 are purchasers of portion of the holding in dispute from defendants 4 and 5. Defendant 6 is the landlord of this holding.
2. The plaintiff commenced a suit for partition under these circumstances: The disputed holding measuring 2.03 acres was the ancestral property of the plaintiff's husband and defendants 4 and 5 were his first cousins. The plaintiff's whole case was that there was a severance of the joint family status between the two branches of the family and each branch, for purposes of convenience, was in actual possession of parts of the holding separately.
There had never been a partition by metes and bounds. According to the plaintiff certain lands out of the ancestral holding were sold separately by her husband and by defendants 4 and 5 to defendants 2 and 3 on several occasions. They have been shown in schedule Kha measuring 0.71; acres and the rest of the land is in dispute measuring 1.32 acres as given in detail in schedule Ka.
The landlord defendant 6 instituted a suit for arrears of rent against her husband and defendants 4 and 5. The husband of the plaintiff died issueless during the pendency of the suit and no steps were taken for substituting the plaintiff as his legal representative. Eventually a decree was passed in the rent-suit against defendants 4 and 5 and a part of the holding measuring 1.045 acres was put to sale in execution of that rent-decree and ultimately was purchased by defendant 1.
Defendant No. 1 got delivery of possession through court on 14-12-1938. The plaintiff, thereafter filed two petitions (1) under Order 21, Rule 90 and (2) another under Order 21, Rule 100, C. P. C., but without any success. The first petition under Order 21, Rule 90 was dismissed for default and the second petition which was filed on 27-3-1939, was substantially dismissed for non-prosecution, on 28-2-1940, Thereafter tho plaintiff filed the present suit on 3-2-1950, claiming partition of the Ka schedule property and mesne profits.
3. The defendant No. 1 alone contested the suit. His defence was that there had been no severance of the joint family status between the plaintiff's deceased husband and defendants 4 and 5 and consequently defendants 4 and 5 became full owners of the holding after the death of the plaintiff's husband which admittedly took place long before the Hindu Women's Rights to Property Act came into force. It was further averred that in view of the previous petitions under Order 23, Rule 90, C. P. C. having been dismissed the suit was barred under Article 11A of the Limitation Act read with Order 21, Rule 103 of the Civil Procedure Code.
4. The learned Munsif who heard the suit at the first instance, held that there had been severance of the joint family status between the plaintiff's deceased husband and his first cousins defendants 3 and 4, prior to the institution of the rent suit by defendant 6. He further held that Order 21, Rule 92 (3) was no bar to the present suit. He however, held that the general rule of 12 years rule would apply to this case and not the special law of limitation under Article 11A of the Limitation Act.
Against this decision of the learned Munsif, defendant 1 carried an appeal to the District Judge. and the two main questions raised before him were (1) whether the findings of the trial court that the plaintiff's husband had severed the joint family status with defendants 4 and 5 were correct, and(2) whether or not Article 11A of the Limitation Act applies to the facts of this case.
The finding regarding the bar under Order 21,, Rule 92 (3), C. P. C., was however not challenged by the appellant. On the first question the learned District Judge relying on the registered sale-deeds Exts. 1 and 1/A of the years 1931 and 1935 respectively, by which the plaintiff's husband alone had sold a portion of the suit-holding to defendants 2 and 3 and the defendants 4 and 5 had sold some other portions of the same holding to defendants 2 and 3 held that there was severance of the joint family status and that each branch was in separate possession of different parcels of land for the sake of convenience and that they were dealing with their interests separately.
Thus there was a concurrent finding of fact, that there was a severance of the joint family status. With regard to the second question, however the learned District Judge relying on a decision of the Patna High Court in the case of Raziuddin Hussain v. Bindeshri Prasad, 5 Pat LJ 652: (AIR 1920 Pat 123), came to the conclusion that an application under Order 21, Rule 100, C.P.C., having been dismissed for default, a suit under Rule 103 is barred by Article 11A of the Limitation Act.
Regarding the question of mesne profits, he came to the conclusion that if he had decreed the plaintiff's suit, she would have been entitled to a sum of Rs. 87/- as mesne profits for three years in suit. In the result, he allowed the appeal of defendant 1 and dismissed the cross-appeal. It is against this order that this second appeal is directed.
5. The sole question that was canvassed at the bar was whether or not the suit was barred by Article 11A of the Limitation Act. Mr. L. Mohanty learned counsel on behalf of the appellant, contended that the application having been dismissed under Order 21, Rule 103 for default without any investigation, Article 11A would not apply. Mr. M.S. Rao learned counsel on behalf of the respondent, on the contrary, contends that the scheme of the Civil Procedure Code regarding the investigation of the claim and the resistance to the delivery o possession to the decree-holder or the auction-purchaser being the same Article 11 of the Limitation Act should apply since both the sets of rules contemplate investigation and enquiry.
Before dealing with this question, I would like to state the order passed on the application under Rule 100 of Order 21 in a little more detail. Ext. E is the order-sheet of the Miscellaneous Case arising out of the application under Order 21, Rule 100. The relevant order in the order-sheet is dated 8-2-19401 and is to the following effect:
'Auction-purchaser and the decree-holder present. The objector prays for time. Sufficient time was given already. No more time shall be allowed. The objection is filed.'
Evidently the Executing Court being' an executive officer meant the petition to be dismissed for non-prosecution when he used the expression 'the objection is filed'. Thus, the question that falls to be considered is whether Article 11A of the Limitation Act would apply to such a case. Undoubtedly, the Patna High Court in the case of Raziuddin Hussain, 5 Pat LJ 652: (AIR 1920 Pat 123), referred to above, took the view that Article 11 would apply to cases arising out of the dismissal of an application under Order 21, Rule 100, C. P. C.
There is, however, a later decision of the same High Court in Dwarika Sahu v. Mt. Anandi, AIR 1950 Pat 25, by which the earlier decision in 5 Pat LJ 652: (AIR 1920 Pat 123), was distinguished, and was not followed by the learned Judges. The facts in Dwarika Sahu's case, AIR 1950 Pat 25, were that the disputed house originally belonged to one Hazari who had two sons, Sib Charan and Chedi.
Sib Charan died leaving two sons Shyamlal and Laljee and Chedi died leaving his widow and daughter Anandi. By the time the case came up before the High Court, the widow was dead. Plaintiff Dwarika in that case claimed the house by purchase in execution of a decree obtained by him against Shyamlal and Laljee, sons of Sibcharan, on the foot of a handnote.
According to him Chedi died joint with his brother Sibcharan and the house finally came to be owned by Shyamlal and Laljee by virtue of survivorship. In execution of the money-decree a claim under Order 21, Rule 58 was filed by defendant 4 Mst. Rajeshwari, which was decided in her favour. The plaintiff, however, succeeded in getting this claim by Rajeswari negatived in a subsequent suit under Order 21, Rule 63, C. P. C. Consequently he asked the Court for delivery of possession in pursuance of his purchase in money, execution case.
This delivery of possession was resisted by Mst. Anandi claiming a half share in the house on the ground that her father Chedi separated from his brother, Shibcharan and that she inherited his half share in the house. Dwarika Sahu thereupon instituted a case under Order 21, Rule 97. C.P.C. On the very first day fixed in the case there was no appearance on his behalf and the case was dismissed for default.
The suit in question was filed more than a year thereafter by Dwarika Sahu. Accordingly the identical question regarding the applicability of Article HA of the Limitation Act cropped up, and Reuben and Narayan JJ., held that the decision in 5 Pat LJ 652: (AIR 1920 Pat 123), is clearly distinguishable because the learned Judges through some misapprehension held in that case that Article 11 of the Limitation Act would apply holding that an investigation is not necessary for the applicability of that Article.
The attention of the learned Judges, however, was not drawn to Article 11A and they did not consider the decision dealing with that provision. Under these circumstances, their Lordships held that the distinction between Articles 11 and 11A is that Article 11 covers orders whether made with or without investigation whereas Article 11A does not apply to cases where there has been no investigation.
While coming to the above conclusion, Reuben J., who delivered the main judgment considered the case at great length. Thus, according to him Article 11 relates to cases arising out of objections filed at the stage of attachment and sale whereas Article 11A applies to cases after sale. In the result, they held that in the circumstances the suit was not governed by Article 11A.
6. The same principle as decided by the Patna High Court was reiterated by the Madhya Bharat High Court in the case of Genda Bai v. Dugdusa, 1956 Madh BLJ 129, though no specific reference has been made to this Patna decision. What was held in that case was that there is a marked difference in the words between Rule 63 and Rule 103 of Order 21 of the C. P. C. It is obvious that Rule 103 makes a specific mention of Rules 98, 99 and 101, Rule 63, on the other hand, does not contain a specific mention of the rules preceding it.
Para 2 of Rule 97 directs the Court to fix a day for investigating the matter. Rule 98 makes it a condition precedent for a direction to put the applicant into possession that the Court should be satisfied that the resistance or obstruction was occasioned by a, person claiming in good faith to be in possession of the property on his own account before it dismisses the application. It is manifest that unless there is an investigation of the question and unless the 'Court' is satisfied, an order under Rules 98, 99 or 101 cannot be made.
If it is not an order under those rules, clearly the contention that a remedy by way of regular suit under Rule 103 is open to the applicant, is untenable. The order passed by the execution Judge is, therefore, erroneous and must be set aside. The same principle was followed in the case of Raghunath Gupta v. Nand Ram, AIR 1951 Punj 431 (1). But a somewhat contrary view was taken by the Mysore High Court in the case of Ramachandra Rao v. Subba Ran, AIR 1952 Mysore 25. The editorial note in that case shows that:
'It will be noticed that the view taken in this case is contrary to the trend of decisions in other High Courts in India (see A.I.R. Limitation Act, Article 11A, N. 8 Pt. 4 and A. I. R. C. P. C., Order 21, Rule 103 N. 3, Pt. 1); Mallapa J.'s view that Article 11A will apply also to cases where the order under Order 21, Rule 99 is not passed after investigation is mainly based on the presence of the words 'after investigation' in Mysore Limitation Act, Article 11 (as it existed originally) and their absence in Article 11A of that Act.'
Hence with great respect to the learned Judges of the Mysore High Court, I could not persuade myself to follow the view adopted therein. The only other case that needs to be considered is the case of G. Suryanarayan v. G. Ganesulu, AIR 1954 Mad 203, wherein it was held that there is an adverse order in execution and that is not got set aside by means of a suit, the order becomes final and it will not be open to the defeated claimant to re-agitate the matter in subsequent suits.
The test is to see whether the order is under Rule 63 or Rule 103 of Order 21, C.P. C. Where the order is against the claimant it does not mean that the order must involve an adjudication on merits after investigation. The principle underlying is the speedy settlement of claims and that if a person chooses to take advantage of a summary procedure he must suffer its disadvantages as well as its benefits and constructive 'res judicata'.
If the claimant asks to be allowed to withdraw the petition and the Court acquiesces in that course the order would not be an adverse order within the meaning of the rule, but it cannot be said that because a claimant says to the Court that he does not press the petition and consents to an order of dismissal it is not an adverse order. Since in that case the petition was pressed, it amounted to an order without investigation. In view of theabove discussions, it appears that the view taken by the learned Judges of the Patna High Court is the correct view,
7. Now turning to the contentions of Mr. Rao, the two sets of rules referred to by him are (i) Order 21, Rule 58 to Rule 63, and (ii) Order 21, Rules 97 to 103. The first set of rules relate to investigation of claims and objections, whereas the second set of rules relates to resistance to delivery of possession to the decree-holder or auction-purchaser. Rule 58 contemplates an investigation of claims and objections to attachment of the property attached.
Similarly rule 97 relates to investigations in respect of obstructions to possession of immovable property; Rule 63 in the first set of rules provides that where a claim or objection is preferred, the party against whom the order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any the order shall be conclusive.
The corresponding rule in the second set of rules is Rule 103 which provides that any party not being a judgment-debtor against whom an order is made under Rules 98, 99 or 101, may institute a suit to establish the right which he claims to the present possession of the property but subject to the result of such suit, (if any), the order shall be conclusive. Thus, there is substantial difference between the language employed in Rule 63 and Rule 103.
Rule 63 does not refer to any of the previous rules except stating that when a claim or objection is made, the party against whom the order is made may institute a suit whereas Rule 103 makes specific reference to orders made under Rules 98, 99 or 101. The evident purpose being that a suit can be instituted by a person against whom an order is passed under the first group of rules whether by contest or not; whereas Rule 103 makes a specific reference to the various rules under which the order was to be made to the satisfaction of the Court.
Satisfaction of the Court can only be whenthere has been an investigation and proper enquiry.Thus, it is clear that Rule 103 is widely differentfrom Rule 63 and would not cover cases where therehas been no investigation and the application isdismissed for default. It may be noted here thatArticle 11 of the former 1877 Act (XV of 1877) referred specifically to orders under Sections 280, 281, 282or Section 335 of the Old Civil Procedure Code Act XIVof 1882).
In the present Act the Article has been split into two parts as Articles 11 and 11A, so as to make it convenient to provide for certain other suits not covered by Article 11 of the former Act, Thus Article 11 is now limited to what are familiarly known as claim orders. While Article 11-A deals with orders relating to delivery of possession passed on satisfaction of the Court after due and proper investigation,
8. Frequently according to Mr. Rao the question arises as to what exactly is the meaning of the expression 'dismissal for default'. In one such case the Allahabad High Court in the case of Chandi Prasad v. Nandakishore, 20 Ind Cas 369 (All.), held that in the circumstances of that case the application cannot be said to have been dismissed for default of appearance without enquiry.
The facts being that the Court had fixed a date for hearing and notices were issued. In fact the plaintiff had summoned his witnesses but for some reason or other he did not examine them and did not adduce any other evidence in support of their application. Judgment was entered in favour of the plaintiffs who were actually present in Court after having summoned their witnesses, but for some reason or other did not take any part in the proceedings.
Hence the learned Judge in the circumstances held that it cannot be said that the suit was dismissed for default. In the case of Jugeshar Rai v. Rai Lal Bahadur, 45 Ind Cas 189 : (AIR 1918 Pat 376), the Patna High Court took the view that since one of the plaintiffs was present the order of dismissal amounted to a decree and was not one of dismissal for default.
But the Bombay High Court in the case of Soonderlal v. Goor Prasad, ILR 23 Bom 414 held that where on the day fixed for hearing the party is present in person merely for purpose of applying for an adjournment which is refused, he must be taken to have appeared within the meaning of Chapter VII of the C.P.C. The party having been appeared the purpose for which he appeared or the action which he took on appearance are immaterial.
Mr. Rao attempted to rely upon a case decided by the Bombay High Court reported in Bhimappa v. Irrappa, ILR 26 Bom 146. The case appears to have been decided on contest. These are cases, however, which do not help the contention of Mr. Rao at all, since each case was decided on its own facts. The facts in the present case are as is clear from Ext. E, that both the auction-purchaser and the decree-holder were present.
The objector, plaintiff in the present case, prayed for time. The Court did not consider it desirable to grant further time as sufficient time had already been allowed. Accordingly, the prayer for adjournment was refused. The order does not show that the objector was present in Court in person. The objector in this case was a woman.
She possibly, was being represented by her lawyer and when the Court did not feel inclined! to grant time, the case automatically stood dismissed for default. Thus, on the facts of this case it cannot be held that the application under Order 21, Rule 100 was otherwise dismissed. Hence the ruling in AIR 1950 Pat. 25 applies in all fours to this case. Mr. Rao frankly conceded that there is no later decision either of the Patna High Court or of any other High Court in India on this point. Thus, I am inclined to take the view that this case is clearly covered by the later Patna decision and Article 11-A has no application to this suit.
9. Mr. Rao faintly attempted to challenge the finding regarding the severance of the status. For this purpose he relied on a case in Jolfa Bibi v. Ajaladdin, 85 Ind Cas 1053 : (AIR 1925 Gal 425). The Calcutta High Court in that case took the view that a partition effected for convenience of possession cannot stand in the way of a decree for partition, so long as it is not found that it is in conformity with the shares of the respective parties.
Here in this case, it is nobody's case that there was a partition by metes and bounds. The plaintiffs whole case was that the parties were in possession of separate parcels of land for purposes of convenience and they were dealing with them separately. Accordingly it is not now open to Mr. Rao to challenge the concurrent finding of fact in this behalf, which is binding on this court.
10. Having come to the conclusion that the plaintiffs suit is not barred by Article 11-A of the Limitation Act, the plaintiff is entitled to a decree for mesne profits which has been ascertained tobe Rs. 87/- for the three years in question. This finding has not been challenged in this Court. Accordingly, the plaintiff is entitled to Rs. 87/- for the mesne profits.
11. The only other matter that yet remains to be considered is the cross-appeal regarding costs which is pressed with certain amount of vehemence by Mr, Rao. The land in dispute measures 1.32 acres in which the plaintiff claimed half share. It is the defendant 1 alone who contested the suit from the very beginning. The trial court while decreeing the plaintiff's suit held that her half share did not pass in the rent-decree and the execution case No. 3885 of the year 1937-38 in the Rent-Court, Kendrapara, and directed partition of her half share in the property, but did not allow any costs.
The learned District Judge, however, while dismissing the plaintiff's suit directed that the lower court's decree for partition of the rest of the Ka schedule land excluding the land of defendant 1 procured under the execution sate which is virtually an ex parte decree against defendants 4 and 5 is left un-interfered with. The plaintiff, however, was entitled to costs throughout. Now this court having held that the plaintiffs suit is not barred by Article 11-A of the Limitation Act, the plaintiff's suit must succeed. Thus, in my opinion, the plaintiff is only entitled to costs proportionate to her success throughout.
Accordingly, the judgment and decree of the learned District Judge, Cuttack, dated 19-10-54 are set aside and the decree of the learned Munsif dated 15-12-52 is restored with the exception that the plaintiff is entitled to the mesne profits of Rs. 87/-,
12. In the result the appeal is allowed with proportionate costs throughout. The cross-appeal is also allowed in party but without costs.
R.L. Narasimham, C.J.
13. I agree.