1. The second defendant In O. S. No. 830 of 1953 of the court of the District Munsiff of Nadapuram was the appellant in A. S. No. 257 of 1957 of the court of the Subordinate Judge of Badagara. He is also the appellant in this Second Appeal.
2. The plaintiff in O. S. No. 830 of 1953 was the first respondent in this second appeal. He is now no more. The fourth respondent was recorded as his legal representative by the order dated 31-5-1966 on C. M. P No. 2895 of 1966
3. O. S. No. 830 of 1953 sought a declaration that the plaintiff was entitled to the tenancy right created under a marupat dated 31-5-1923 It was common ground that the second defendant had obtained the rights of the jenmi The question that arose for consideration was whether the plaintiff had obtained the tenancy right under the marupat by an assignment dated 14-8-1952 in the name of the first defendant benami for himself as contended by him.
4. The suit was decreed by the trial court, and the appeal by the second defendant did not succeed. The contention of the second defendant before us is that the suit should have been dismissed on the ground that the order in I. A. No. 467 of 1953 in O. S. No. 504 of 1952 of the court of the District Munsiff of Nadapuram against the plaintiff had become conclusive under Order 21, Rule 103 of the Code of Civil Procedure, 1908.
5. O. S. No. 504 of 1952 was a suit by the second defendant against the first defendant the benamidar of the plaintiff. The plaintiff tried to get himself impleaded in that suit by R. I. A. No. 566 of 1953. The second defendant opposed that application and it was dismissed by an order dated 15-4-1953.
6. A decree followed and in execution of that decree the second defendant sought possession of the property. The plaintiff obstructed and the second defendant filed I. A. No. 467 of 1953. The order in that I. A. wasagainst the plaintiff. It was made on 24-12-1953.
7. Under Order 21, Rule 103, the plaintiff had the right to institute a suit to establish the right which he claimed to the 'present possession of the property:'. That rule also says that 'subject to the result of such suit (if any), the order shall be conclusive.'
8. Under Article 11A of the Indian Limitation Act, 1908, the suit contemplated by Order 21, Rule 103, should be instituted within one year from the date of the order. No such suit was instituted and the contention of the second defendant, as already stated, is that the order in I. A. No. 467 of 1953 against the plaintiff has become conclusive and that the present suit should have been dismissed on that account.
9. There is no doubt that a suit pending on the date of the adverse order will do duty for the suit contemplated by Order 21, Rule 103. This is clear from Palaniappa v. Ramaswami, AIR 1937 Mad 582, Umanath v. Pedru Souza, AIR 1950 Mad 19, Abdul Rahim v. Swaminatha Odayar, AIR 1958 Mad 19 and Gopiram v. Sewantilal, AIR 1960 Cal 580.
10. There is a controversy, however, as to the time within which the decision in the pending suit should be rendered in order to be effective against the conclusiveness provided by Order 21, Rule 103. According to AIR 1950 Mad 19, the date of the decision in the pending suit is immaterial for the purpose. It can be at any time, within a year of the adverse order or thereafter. According to AIR 1937 Mad 582 and AIR 1956 Mad 19, the decision in the pending suit should be within a year of the adverse order and not at any time thereafter. AIR 1960 Cal 580, deals with the matter as follows:
'Evidently, Rule 103 does not contemplate or cover a case in which a previously instituted suit by the aggrieved party is already pending, the suit is not certainly nullified or invalidated by a summary order. If a competent court gives a decision in that suit within a year of the passing of the summary order, the decision must be accepted as valid because the time-limit for challenging the summary order has not vet run out and the party in whose favour the order is made in the summary proceeding cannot get any advantage of it, the summary order not having attained finality. Whatever may be the position with regard to a decision given in a previously instituted suit after the expiry of one year from the date of the passing of the summary order, the decision given in such a case within a year from the last mentioned date must be taken to be good and valid, because the summary decision does not attain finality or collusiveness before the expiry of one year from the date when it is passed.
11. The view that appeals to us is the view expressed by Govindarajachari J. in AIR 1950 Mad 19. In that case the adverse order under Order 21 Rule 98, was passed on 9-8-1942. The earlier suit by the person against whom the adverse order was passed had already been dismissed, but he had filed an appeal and that appeal was pending on that date. The appeal was allowed on 16-3-1944, that is, more than a year and a half after the passing of the adverse order. The learned Judge said:
'Where a suit or an appeal already filed by the claimant is pending at the time when an order under Order 21, Rule 98 dismissing his claim is made, it is not obligatory on his part to file another suit under Order 21, Rule 103 within one year of the order under Order 21, Rule 98, in such a case the order is subject to the decision in the suit or appeal pending at the time.' (Head-Note)
12. In Sardhari Lal v. Ambika Pershad, (1888) ILR 15 Cal 521 (PC), the Privy Council had occasion to deal with the character of the order, the provision for a suit and the period of limitation. It said:
'The order is not conclusive; a suit may be brought to claim the property, notwithstanding the order; but then the Law of Limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought '
13. In other words what Order 21, Rule 103, read with Article 11A of the Indian Limitation Act stipulates is the institution of a suit within a year of the adverse order and not the decision of that suit within any specified period. If a suit pending on the date of the adverse order will do duty for a suit contemplated by Order 21, Rule 103, then the date of the decision of that suit should be equally immaterial,
14. This is as it should be. A plaintiff has control over the date of institution He has no control over the date of decision.
15. We must add that the contention of the second defendant which we have dealt with in the preceding paragraphs was not, even pressed before the first appellate court. The learned Subordinate Judge says:
'It was not disputed before me that since the present suit for a declaration had been already filed and was pending on the date of the order on I. A. 467/53, the plaintiff was not bound to file a separate suit to set aside the order removing resistance '
16. The Second Appeal fails and is hereby dismissed. In the circumstances of theease, however, we shall direct the partiesto bear their costs in this Court.