1. The District Munsif's order of 17th March 1913 on the claim petition was an improper one as it followed the practice condemned in venkataratnam v. Ranganayakamma ( 35 M.L.J. 335 of notifying claims to intending bidders without investigating them.
2. But whatever was the order which should have been passed on the claim I am satisfied that the order that was actually passed was not an order against the claimant within the meaning of Rule 63 of order XXI (of the Code of Civil Procedure), as it did not negative his claim to an undefined share in the property attached. The claimant's petition was not dismissed. The facts of this case are similar to those in Lakshmi Ammal v. Kadiresan Chettiar : AIR1921Mad488 ; and Ayya Pattar v. Attupuratti Va-sudevan Bhattathiripad (1918) 52 I.C. 938 ; and in the course of those decisions it was pointed out that every order which is not in favour of a claimant is not necessarily an order against him.
3. In this view the lower appellate Court was right in deciding that Rule 63 of Order 21, C.P. Code, does not bar the present suit. As my learned brother agrees with me, the Civil Miscel-lanous Second Appeal is dismissed with costs.
Venkatasubba Rao, J.
4. The question to be decided is: Is the suit barred by Article 11 of the Limitation Act? The suit is for partition. The suit property had been attached in execution of a decree obtained by the first defendant against a certain person and the plaintiff then preferred a claim stating that the judgment-debtor had only a share in the property and that he himself was entitled to a moiety thereof. On the claim petition the Court made the following order: ' The petitioner's contention is that the defendant has only a share in the property and that the other shares belong to the petitioner and some others. Whatever right the defendant has will pass by the sale. The petition does not require any further investigation. The claim put forward by the petitioner will be noted in the sale proclamation. ' The sale was held and the 1st defendant became the purchaser. The plaintiff seeks in the present suit to recover his half share of the property from the 1st defendant. It is contended on behalf of the latter that the order referred to amounts to an order against the plaintiff under Rule 63 of Order 21 of the Civil Procedure Code; and that the suit having been filed long after the lapse of a year from the date of the order the suit is barred under Article 11 of the Limitation Act. The Subordinate Judge overruled this contention.
5. It seems to me that the Subordinate Judge's decision is correct. In the first place it is necessary to observe that in making the order referred to the Court did not act in accordance with the provisions of the Civil Procedure Code. It was the duty of the Court to have investigated the claim, and if it was satisfied that the claimant made out his case, to have released the property from attachment, or if it arrived at a decision against the claimant, to have disallowed the claim. This course is obviously not followed by the District Munsif who made the order in question. At the same time it must be noted that an order to sell the property did not necessarily mean that the claim of the plaintiff was found against, because in any event the judgment-debtor was entitled to a share in the property. The District Munsif moreover expressly stated in his order that by the sale only the right of the defendant would pass. No doubt this is a truism. But we are not concerned with the propriety of the course followed by the District Munsif. The question is not, whether the District Munsif's order is legally sustainable, but whether the order that was made was an order against the plaintiff under Rule 63 and under Article 11. It is clear that the District Munsif did not intend to make an order against the plaintiff, and he in effect states that as by the sale, only the right of the defendant will pass and as the petitioner has not claimed the whole of the property, the petition does not require any further investigation. I cannot construe this order as an order against the plaintiff. The Courts have repeatedly condemned the practice followed in this instance by the District Munsif. But I fail to understand why the plaintiff should suffer on account of the erroneous order made on the claim petition. The combined effect of Order 21, Rule 63, Civil Procedure Code and Article 11 of the Limitation Act is to cut down the usual period of limitation which in many instances is 12 years to a year when the case falls within the terms of the said sections. The result is if a person whose property is attached takes no steps under the summary procedure available to him to get his right established, he has the usual period of limitation. But if he prefers a claim and an order is made against him he is bound to file a regular suit within a year of the order. In this state of things when it is not clearly an order against the claimant as is contemplated by the provisions referred to above, I do not think the Courts will be justified in placing a forced construction upon the order for the purpose of deciding that it is an order against him though it is not on the face of it, and though it was not intended to be, such an order.
6. The Appellant strongly relied upon the decision of the Full Bench in Venkataratnam v. Ranganayakamma (1918) 14 Q.B.D. 627. It was held in it that an order refusing to investigate a claim on the ground that there was delay in filing it is an order passed ' against' the claimant. The order to be construed in that case was in the following terms: ' The allegations of the Zamindarini will be notified to the bidders with the remark that the Zemindarini did not take steps for her claim being enquired into during the last 10 months. ' Rule 58, Order 21, Civil Procedure Code enacts that no investigation shall be made ' where the Court considers that the claim or objection was designedly or unnecessarily delayed. ' But however the Full Bench decided that the order made was in effect an order rejecting the claim. Sin John Wallis, C.J. seemed to think that the claimant having been at fault in preferring his claim beyond the time allowed by the law, there was nothing unfair in requiring him to proceed to assert his title by suit within the shorter period of limitation prescribed. He observes at the close of his judgment ' though the order only was that the allegations of the Zamindarini would be notified to bidders, we think it amounted, and was understood to amount, to a rejection of the claim on the ground that it was filed too late. We are bound by the decision of the Full Bench. But I cannot regard it as an authority which bears on this case. In Lakshmi Animal v. Kadiresan Chettiar (1885) 14 Q.B.D. 627 the following order which was made on a claim ' Sale stopped. The claim cannot be investigated by this Court. The petition dismissed, ' had to be construed, and it was held that the order did not negative the right set up by the claimant. Mr. Justice Spencer bases his decision on this ground and Mr. Justice Ramesam says: ' I agree with my learned brother in holding that Exhibit VII cannot be taken to be an order negativing the claimant's right, ' and that learned Judge clearly says that that is the ground of his decision. In Ayya Pattar v. Attupurathmanak-kal Vasudeva Bhattathiripad (1885) 14 Q.B.D. 627, a Bench of this Court held that where a person objected to the attachment of property and filed a petition asking that his objection should be recorded, without asking for an investigation of his claim, and the Court recorded his objection, such recording did not amount to an order against the objector under Rule 63 of Order 21. Abdur Rahim, J. refers to the decision of the Full Bench and observes: ' But it would be going too far to say that the rule applies to cases where a person, while putting in a petition setting out his objections, does not ask the Court to investigate his claim. ' These two cases support the view which I am inclined to take.
7. The learned Vakil for the appellant has referred us to the decision in Civil Miscellaneous Appeal No. 423 of 1921 of Mr. Justice Krishnan and myself. In that case a claim petition was filed and an order was passed in these terms: ' withdrawn, closed. ' We decided that the word 'closed' was tantamount to 'dismissed' and we held that the point was concluded by the authority of the Full Bench ruling. The case was indistinguishable from the decision of the Full Bench and 1 therefore arrived at that decision. I may refer to the following passage in the judgment:--' The question whether an order is against the claimant or not does not depend on whether the Court had investigated the claim or not. It really depends upon the effect of the order, and if in substance and in effect it negatives the claimant's claim and refuses to recognise it, that is an order which falls under Article 11 of the Limitation Act. ' I do not think this is a decision which helps the appellant. I am clearly of the opinion that the order in question is not in effect and in substance one negativing the plaintiff's claim. I do not think there is any justification for extending the rule laid down in 41 Mad. 985 (F.B.) to cases not really covered by it. For these reasons I entirely agree with the judgment delivered by my learned brother.