1. The point to be decided now is whether the question of 2nd defendant's title has been concluded against her by reason or the order passed in R.E.A. No. 243 of 1910 in R.E.P. No. 375 of 1910.
2. The suit property-was attached in R.E.P. No. 375 or 1910 and the 2nd defendant filed a claim petition (R.E.A. No. 243 of 1910) claiming right to the property. The order passed on that petition is Ex. E. and rims as follows: 'There is no time to investigate into this claim. The petition is dismissed without investigation on the ground of delay. I may add that the sale will not affect the rights, if any, of this petitioner.' The plaintiff's contention is that as the 2nd defendant did not tile a suit within a year from the date of this order her right to the property is barred.
3. Now if the order had been merely, 'This petition is dismissed without investigation on the ground of delay,' the matter would have been quite simple. It would be covered exactly by the Full Bench case, Venkataratnam v. Ranganayakamma 35 M.L.J. 335 wherein it was held that such an order was an order rejecting the claim, to which the provisions of Order 21, Rule 63 will apply. The question is, what is the effect of the added sentence 'The sale will not affect the rights, if any, of this petitioner.' Can it be said that when the order expressly declared that the sale would not affect the right of the petitioner, the order was one passed against the party?
4. The answer to this is, I think, to be found in the Full Bench case referred to. In that case the order that was under consideration was as follows: 'As this petition was filed late, this claim is ordered to be notified to the intending bidders.' It was held that the order amounted to a rejection of the claim on the ground that it was filed too late. It was pointed out in the judgment of Seshagiri Iyer J, that 'when a claim is preferred, the usual prayer is that the attachment should be raised as the property does not belong to the judgment debtor but belongs to the claimant. On the presentation of such a petition, if the order is not that the property be released from attachment, it must be taken to be an order against the claimant,' and further 'His right to raise the attachment must be deemed to have been negatived, when the property was ordered to be sold without releasing it from attachment. Therefore an order on a claim petition which expresses no final judgment upon the right put forward, but simply directs the sale after notifying the claim, is an order against the claimant.'
5. In the present case the fact that the order wrongly stated that the petitioner's rights would not he affected does not help her. She asked for a release or the property from attachment and she sought to establish her right. She did not succeed. I think therefore following the judgment of the Full Bench case as quoted supra it must he held that the order was against her and it was her duty to proceed to asset her title by suit within one year.
6. The case of Lakshmi Ammal v. Kadiresan Chettiar : AIR1921Mad488 has been referred to but that is not in point because in that case the attachment had terminated and the District Munsif had no authority to dispose of the petition of claim.
7. One other case has been quoted, the case of Saharabi v. Ali (1922) 44 M.L.J. 141 but in that case the claimant's petition had not been dismissed and his claim to an undefined share in the property attached had not been negatived. In the present case the petition was dismissed and though it may be argued that the rider, attached to the dismissal, to the effect that the order would not affect the claimant's right, means that that was not negatived, it is plain the right was not established and in the light of the observations in the Full Bench case the order was one against the party. I think therefore the District Judge was right in the view taken by him of the effect of the order on the claim petition. It has then been urged that the 2nd defendant can still rely upon adverse possession but the case of Velayudan v. Lakshmana I.L.R. 8 M. 506 is an authority for the position that the rejection of a claim, if not contested by suit, will estop the claimant horn pleading adverse possession at the date of the order in a suit brought to eject him. Since the date of the order the possession has been insufficient to establish a title.
8. The decision of the District Judge is right and the appeal must be dismissed with costs.