John Edward Power Wallis, Kt., C.J.
1. The plaintiffs in this case claim under an assignment from the auction-purchaser at an execution sale of the 1st defendant's interest in certain property which was in the enjoyment of the 1st and 2nd defendants as tenants in common. The sale took place on the 16th March 1898 and was confirmed on the 21st April 1898, and the sale certificate issued on the 22nd April 1898. The present suit was brought on the 15th April 1910, but it was only when it was amended on the 15th October 1910 that it became a suit to enforce the plaintiff's rights as representatives of the auction-purchaser to partition the property to which they were entitled as tenants in common with the 2nd defendant. This date therefore must be regarded as the date of instituting the suit. The Subordinate Judge has dismissed the suit, as barred under Section 47 of the Code of Civil Procedure on the ground that possession was never obtained under Order 21, Rule 96 of the Civil Procedure Code, 1908 (Section 318 of the old Code). It is unnecessary to consider whether the section is applicable to a case where the judgment-debtor whose interest was purchased was in joint possession with a third party, because I think that the title having vested in the plaintiff's assignor under section 65 and Order 21, Rule 94, they were entitled to bring the present suit without obtaining any formal delivery of possession. The decision in Yelumalai Chetti v. Srinivasa Chetty I.L.R. (1906) M. 294 was to this effect and it was the duty of the Subordinate Judge to follow it instead of indulging in idle speculations as to Section 318 not having been present to the mind of the learned judges who decided that case. That decision is also in accordance with Krishna Kanta Rai v. Krishnadas Lala (1910) 12 C.L.J. 378 Ram Lakhan Rai v. Gajadhar Rai I.L.R. (1910) A. 224 and Bhagwant Singh v. Bholi Singh I.L.R. (1913) A. 482. The Subordinate Judge has also held that the suit is barred under Article 137 of the Limitation Act. Here again disregarding the recent ruling of this Court in Hari Kristna Chowdary v. Venkata Lahshminarayana I.L.R (1910) M. 402 that Article 144 was the article applicable, a decision which it was his duty to follow. It has not been attempted to support the Subordinate Judge's decision that the suit was barred under Art, 137 as clearly at the date of the sale the judgment-debtor was not out of possession within the meaning of the article. It has however been contended that as he was then in possession with the 2nd defendant as tenant in common he was in possession at the date of the sale with him within the meaning of Article 138 and that that article applies.
2. Now apart from Yelumalai Chetti v. Srinivasa Chetti I.L.R. (1906) M. 294 there is no authority for holding that article 138 will not apply when the defendant does not claim through or under the judgment-debtor. Krishna Kanta Rai v. Krishnadas Lala (1910) 12 C.L.J. 378 Bagwant Singh v. Bholi Singh I.L.R. (1910) A. 224. Here the 2nddefendant is not a person claiming through the judgment-debtor the 1st defendant and therefore Article 144 and Article 138 would be the article applicable. I am therefore not prepared to differ from the decision in Yelumalai Chetti v. Srinivasa Chetti I.L.R. (1906) M. 294 and would allow the appeal, reverse the decree, give the plaintiffs a preliminary decree for partition and remand the case to the Lower Court for disposal according to law.
Seshagiri Aiyar, J.
3. One Ramaswami Iyengar obtained a decree against the 1st defendant and brought the plaint properties to sale and purchased them himself. Peer Mohideen, from whom the plaintiffs in this suit derive title, purchased the properties from the said Ramaswami Iyengar under Exhibit B on the 11th July 1898. Ramaswami Iyengar obtained his sale certificate under the Court sale on the 22nd April 1898 (Exhibit A). The 2nd defendant is the brother of the 1st defendant and the other defendants claim under the 2nd defendant. The plaintiffs sue for a partition of the properties and for the allotment of a half share to them. The defendants raised various pleas on the merits; they were all found against them by the Subordinate Judge; but he dismissed the plaintiffs suit on two grounds, namely--that the suit was not maintainable by reason of Section 47 of the Code of Civil Procedure, and that it was barred by Limitation under Article 137 of the Limitation Act, In appeal Mr. Rangachariar contends that the lower Court is wrong on both the points.
4. I wish at the outset to point out that both the questions are covered by the decisions of this Court. In Yelumalai Chetti v. Srinivasa Chetti I.L.R. (1906) M. 294 Subramania Aiyar and Benson JJ, held under similar circumstances, that the suit was not affected by Section 244 of the old Code, which corresponds to Section 47 of the New Code. As regards the question of limitation, Sir Arnold White C. J. and Munro J. held that the proper article applicable to suits of this nature is Article 144. The Subordinate Judge before whom these two cases were quoted instead of following them indulges in some criticism regarding their correctness. As I shall show presently the two decisions of this Court are perfectly sound. Even if it were otherwise, it was the duty of the Subordinate Judge to have followed them.
5. Now upon the first question as to whether Section 47 bars the suit. Mr. Srinivasa Gopalachariar contended that, as the purchaser in the Court sale and his successor in title did not take steps under Order 21, Rule 96 of the Code of Civil Procedure, the plaintiffs were not entitled to maintain the suit. The contention of the learned Counsel amounts to this : that before the title under the sale certificate could be perfected, it was necessary to have applied for delivery of such possession as the Civil Procedure Code contemplates. I am unable to agree with this contention. Two courses are open to a purchaser at a court sale. He may choose to avail himself of the remedy given to him by the Code of Civil Procedure and seek for such possession as he can obtain under the Code; or he may ignore the provisions of the Code and stand upon his general rights of prosecuting his claim by instituting a suit. It is contended that under Order 21, Rule 96, partition cannot be obtained. It is also conceded that the 2nd defendant cannot be compelled by proceedings in execution to give one-half of the property to the auction purchaser. But it is argued that as the 1st defendant, the judgment-debtor, is a party to the present suit, Section 47 stands in the way of the plaintiffs obtaining their rights. I feel no hesitation in holding that that section does not apply to cases where the effectual remedy is to be obtained against persons who were not parties to the previous litigation. That was the view taken by this Court in Yelumalai Chetti v. Srinivasa Chetti I.L.R. (1906) M. 294. The decisions reported in Kattayat Pathumayi v. Raman Menon I.L.R. (1902) M. 740 and Sadhu Taraganar v. Hussain Sahib I.L.R. (1904) M. 87 are not against this conclusion. In these cases the only person against whom relief was sought was the judgment-debtor himself; Section 244 was rightly held applicable to such cases. Kishori Mohun Boy Chowdhry v. Chunder Nath Pal I.L.R. (1887) C. 644 is in accordance with this Court's decision. As was pointed out by Petheram C.J. in that case, 'though, there may be remedy under Section 318 (corresponding to Rule 96) which the auction-purchaser may put in force, still the ordinary remedies are open to him notwithstanding, and the remedies are concurrent.' I entirely agree with this statement of the law. It is not necessary in this case to consider whether the auction purchaser, when he happens to be the decree-holder, can be said to be a party to the suit. Different courts have taken different views upon that point. In Madras there has been a long course of decisions which establishes that, where property is purchased at a court sale by the decree-holder, he does not lose his status as a party to the suit. Even on that view the present contention cannot be said to arise between parties to the suit, because, as I have said before, the real remedy is sought against the 2nd defendant, the 1st defendant being only pro forma; as the 2nd defendant was not impleaded in the former litigation, Section 47 is not a bar to the maintainability of this suit. Moreover, I am of opinion, although it is not necessary to express any definite conclusion on the point, that Rule 96 has no application to cases of co-tenants. The rule itself speaks of the possession of tenants and, others entitled to possession. These latter words Would prima facie apply only to persons who claim possession in their own right, and not to those who are entitled to hold possession for themselves and for others.
6. Upon the second question all the courts are agreed that article 144 of the Limitation Act applies to a suit for partition between tenants-in-common, although the tenant has acquired his right by purchase at a court auction. At first sight, I was impressed by the argument of Mr. Srinivasagopala Chariar that the language of the article 138 does not support the construction that in order to attract its provisions, the suit must be only against the judgment-debtor. But it has been considered in Lakshman VinayakKulkarni v. Bisansingh I.L.R (1890) B. 261 that unless the party resisting possession is either the judgment-debtor or somebody deriving title from him, the proper article applicable will be 144.
7. The language of the latter article is more comprehensive and would cover all cases where adverse possession is set up. Although it is true that article 144 being the residuary article should only be resorted to where there, is no specific provision in the other articles of the Act, it seems to me that the two articles would overlap each other unless the earlier one is confined in its operation to suits against judgment-debtors alone, and the latter made to apply to other cases of adverse possession. There is the authority of Mookerjee J., in Khiroda Kanta Roy v. Krishnadas Lala (1910) 12 C.L.J. 378 in support of this proposition. Gopal v. Krishna Rao I.L.R. (1900) B. 275 is also to the same effect. The latest case upon the point is Bhagwant Singh v. Bholi Singh I.L.R. (1913) A. 132. The decision in Hari Krishna Chowdhry v. Venhata Lakshmi Narayqna I.L.R. (1910) M. 402 must be taken to have adopted this series of decisions in the other courts. I am, therefore, of opinion that Article 144 applies to this suit. If it does, there can be no question of adverse possession, because the possession of one co-tenant is the possession of all persons entitled as tenants-in-common; and unless and until the co-tenant in possession sets up notoriously a right adverse to the other claimants there can be no adverse possession. Even if article 138 applies, I am of opinion that having regard to the acknowledgment of right made by the 1st defendant in Exhibits F and K in 1898 and 1902 respectively the suit will not be barred by limitation. It is necessary to point out that the Subordinate Judge's view that article 137 applies was not sought to be supported in this Court. Mr. Srinivasagopala chariar based his argument on article 138.
8. The decree of the Subordinate Judge must be reversed and a preliminary decree for partition must be passed in this Court.
9. The case will be remanded to the Lower Court for passing a final decree. The costs will abide the result.