1. This is an appeal by the defendant in a suit instituted for partition and recovery of possession of a half share of the suit properties on the ground that the plaintiff had purchased in Court auction, the right, title and interest of the defendant's brother, who according to the plaintiff was entitled to a half share in those properties. The Court auction was held in execution of a decree obtained on a promissory note said to have been executed by the first defendant's brother, the deceased Pakkiri Mohideen Rowther and his wife. When the plaintiff attempted to take possession as execution purchaser, the defendant resisted delivery alleging that he had obtained a sale of his brother's half share from his widow. On that obstruction, the plaintiff filed E.A. No. 367 of 1932 and it is alleged in paragraph 5 of the plaint that that petition was heard and an order was passed thereon by the Court on 13th October, 1932, to the effect that the sale obtained by the defendant was not supported by any consideration, that the defendant had no manner of right to the half share of his deceased brother and that the same should be delivered to the plaintiff. The plaint adds that delivery of possession was accordingly given to the plaintiff on 22nd October, 1932; but as the deceased was entitled only to an undivided half share there could have been, in the nature of things, no physical dispossession of the defendant and in that sense the delivery was only of symbolical possession.
2. When the plaintiff instituted this suit for partition on the strength of the title thus acquired, the defendant attempted to reagitate the questions put forward at the time, when he obstructed delivery. The 4th issue was accordingly framed and it raised the question 'whether the defendant is barred from raising the said pleas?'. Both the Courts below have held that the defendant is barred. Hence this appeal by the defendant.
3. I feel little doubt that the order on E. A. No. 367 of 1932 was one passed under 0.21, r. 98, Civil Procedure Code. Such an order could have been passed only after notice to the defendant and an investigation of the case as contemplated in Sub-clause 2 of Rule 97. The terms of Rule 103 of Order 21, Civil Procedure Code, clearly cover an order under Rule 98; and so far as the conclusiveness enacted in the final part of Rule 103 is concerned, it can make no difference whether the question is sought to be reagitated by a person as plaintiff or as defendant. The cases relied on by Mr. Appuswamy Aiyar, namely, Ayyakutti Mankondan v. Periasami Koundan (1913) 1 L.W. 31 and Arumugha Padayachi v. Muthal Reddi (1930) M.W.. 1051, do not afford any help in the present case; because, in the former case, the order was passed under the old Code where the language of the rule then in question was somewhat different and as pointed out by Spencer, J., in that case it was not clear that the order was at all unfavourable to the party who was sought to be bound by the one year's rule. In Arumugha Padayachi v. Muthal Reddi (1930) M.W.. 1051, it does not appear that there was any resistance to delivery and an order in the presence of the party resisting, overruling his objection.
4. I am, however, inclined to think that the Courts below went too far in holding that every issue sought to be raised in this case must be taken to be precluded by Order 21, Rule 103, Civil Procedure Code. If I found that there was any substance in the issue about adverse possession or the issue which attacks the validity of the decree in the promissory note suit, I should have directed an enquiry into those issues, because I cannot agree that even such questions could have been raised in the obstruction proceedings. But the issues seem to me so unsubstantial and untenable that it does not seem to be worth while putting the parties to the expense of a trial in respect thereof. A person in the position of the first defendant is not entitled to question the decree in S.C.S. No. 944 of 1930 on the ground that the promissory note then sued on was not genuine. Nor in the face of the allegations in the written statement, am I able to understand that there is any basis for the issue relating to adverse possession. I regret to be obliged to say that the issue has been raised without any regard to the pleadings. In the written statement the defendant admits that Pakkiri Mohideen Rowther was entitled to a half share and that he allowed the defendant to enjoy the property in lieu of interest on a sum of Rs. 106 which is said to have represented, Pakkiri Mohideen Rqwther's share in the expenses incurred by the defendant during their mother's illness. The sale to the defendant even as alleged in the written statement took place only in 1930. In these circumstances the plea of adverse possession is so obviously untenable that I do not think the Court can take any further notice of it. The second appeal therefore fails and is dismissed.
5. Leave to appeal is refused.