1. This was a suit to establish the plaintiffs' right to the suit property and to recover the same from defendants 1 to 5, if necessary after division, and for mesne profits. The Temporary Subordinate Judge of Salem decreed the suit in favour of the plaintiffs holding that they were entitled to a two-third share in the leasehold right in the plaint village with mesne profits. On appeal to the District Judge of Salem he found that the suit was not maintainable in law and dismissed it. The property originally belonged to the 6th defendant and his sons. It was mortgaged under two mortgage deeds, Exs. A and B, to the plaintiffs' father. We are only concerned with the first of these mortgages, dated nth July, 1898. The plaintiffs sued on the mortgages, got a decree on 28th August, 1907, executed it and purchased the property in Court sale on 28th January, 1909. They tried to take possession on 21st May, 1910 (Ex. C-4), and the 1st defendant and others obstructed. These latter had bought the property on 9th December, 1908 in execution of a money decree obtained by them on 10th April, 1901 in O.S. No. 698 of 1898 on the file of the Tirupatur Munsif's Court. When the 1st defendant in 1908 proceeded to execute his decree the plaintiff's father-on 26th October, 1908, put in a claim petition to the Execution Court that the Court sale should be subject to his mortgages. The claim was dismissed on 6th November, 1908, and the 1st defendant bought the property in Court sale on 9th December, 1908.
2. The first point taken before me on appeal from the District Judge is with reference to the order made on Ex. C-5. Ex. C-5 is a petition, dated 25th September, 1912 by the plaintiffs under Rule 95, Order 21, Civil Procedure Code and they pray that the 1st plaintiff having now become a major the said property may be delivered to the 1st plaintiff on behalf of all the plaintiffs. The order of the learned District Judge on this petition, dated 24th October, 1912 was, ' Refer him to suit '. This is obviously a reference to Order 21, Rule 103 where a party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may bring a suit. This portion of the order of Order 21, Civil Procedure Code, begins with Rule 97 and is headed 'Resistance to delivery of possession to decree-holder or purchaser, ' whereas Rule 95 is in a different part of the order headed ' Sale of immoveable property '. It is not disputed that if the application was in fact under Rule 95, the order of the learned Judge must be taken to be an order under that rule, that Section 47, Civil Procedure Code, is applicable and that the plaintiffs' remedy was not by a suit under Rule 103, Order 21, but by appeal from the order under Section 47 which appeal is specifically given by the Code under Section 2(2) and Section 96. This point was not taken in the first Court but the learned District Judge allowed it to be taken before him, and as it has been argued in extenso before me I must deal with it. The learned District Judge thought that, though Ex. C-5 made no reference to any obstructions and owing to lapse of time the affidavit in support of the petition was not available before him, some reference to an obstruction must have been made therein, otherwise the Court would have ordered delivery which would have been the appropriate order under Rule 95 and not have referred the plaintiffs to a suit. The learned Judge therefore held that Ex. C-5 was an order passed in execution on a matter of removal of obstruction to delivery of possession and therefore that the order in Ex. C-5 was one made against the plaintiffs in that the Court refused to carry out their prayer for delivery and referred them to a suit. With regard to that I entertain grave doubts whether the learned Judge was right. Mr. K.V. Krishnaswami Aiyar for the respondents contends that, assuming the order in Ex. C-5 was one under Rule 103, the terms of the rule have not been complied with and the plaintiffs are therefore not persons against whom an order has been made and therefore no remedy by a suit under Rule 103 was open to them. All one can say is that there was no evidence that in October 1912 there was a continued or renewed obstruction by the defendants such as has been reported to the Court in June, 1910 (Ex. C-4). It looks as if the Court was mistaken and thought that the petition, Ex. C-5, was really under Rule 97 and hence referred the plaintiffs to a suit. However that may be, it will not affect my decision on the main point which I now proceed to consider. It was urged for the plaintiffs-appellants before me that the remedy under R 103 does not take away the right of appeal under Section 47. Three cases are referred to in Sivasamba Aiyar v. Kuppan Samban (1915) 29 M.L.J. 629 where it was held that Section 47 is comprehensive and the fact that an alternative procedure by suit instead of appeal is provided in certain circumstances cannot affect its character. In Meyyappa Chetti v. Chidambaram Chetti : (1920)39MLJ603 a decision of the same two learned Judges, they held that Order 21, Rule 103 should not be read as providing expressly against any right of appeal which would otherwise be available. Badmi Seshayya v. Katti Chinna Mariappa (1918) 52 I.C. 928 was also referred to in this connection where a Bench of this Court held that Rule 103 is not restricted by the general provisions of Section 47. I might add that this latter is a short judgment and no reasons are given for the decision. In Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 decided by the learned Judges who decided the cases just cited from the Madras Law Journal, they held that where claim proceedings under Order 21 fall also under Section 47, Order 21, Rule 103 does not prevent an appeal against an order therein as it falls under Section 47 of the Code. That is to say, that with regard to this case and those cited from the Madras Law Journal, it was held that a suit under Rule 103 does not bar an appeal under Section 47. The learned Judges did not consider the case here, namely, whether a case really arising under Section 47 would bar a suit under Rule 103. I agree with the contention of the learned vakil for the respondents that the cases cited [with the possible exception of Badmi Seshayya v. Katti Chinna Mariappa (1918) 52 I.C. 928 do not establish the proposition that the two remedies are concurrent, so that assuming that this is a suit under Rule 103 and that the order in Ex. C-5 was really one under Section 47, it was not open to the plaintiffs to proceed at their option either by a suit or byway of appeal. It is also to be observed that Section 47 expressly bars a suit in contra-distinction to Rule 103 which says that the order on obstruction proceedings shall be conclusive subject to the result of the suit, if any. It has, as far as I know, never been suggested in any case that the procedure under Section 47 and under Rule 103 is cumulative. If this were the law it is not difficult to imagine that anomalies would arise. I must hold therefore that the learned District Judge was right in holding that the matter arose under Section 47 and that therefore the plaintiffs ought to have appealed. For this appeal they are now of course hopelessly out of time. The appellants therefore urge the matter which will be dealt with hereafter under the third point. Further the rules provide that an investigation should be made under Rule 97(2), and this is a sine qua non of an order under Rules 98 and 99. These rules bear some analogy to Rules 58 and 63 which are headed 'Investigation of Claims and Objections'. But it will be observed that under Rule 63 no investigation is necessary and a suit can be brought by the party against whom an order is made. That an investigation is necessary under Rule 97(2) is clear from the ruling in Sarat Chandra Bisu v. Tarini Prasad Pal Chowdhuri I.L.R. (1907) C 491. Majjiga Venkatasubba Reddi v. Chundi Linga Reddi (1917) 41 I.C. 640 by a Bench of this Court and Gouri Churn Patni v. Sita Patni 14 C.W.N. 346. This only shows again that the plaintiffs ought to have appealed from the order passed on Ex. C-5 if it was mistakenly made under Rule 95 as mentioned above or in any case as having been passed without complying with the condition precedent laid down in Rule 97(2). However, there is nothing whatever on the record here to show that any investigation was in fact made. I must therefore decide against the appellants with regard to the first point.
3. The second point is that an act of the Court should not be allowed to injure the appellant. If the Court made a mistake in referring the appellant to a suit he should not suffer and there was no obligation on him to file an appeal against that order. The reply is this, that no estoppel is pleaded and there is nothing on the record to show that the respondent was responsible for the order passed.
4. The third point is that if as I have held an appeal ought to have been preferred against the order on Ex. C-5 I should convert this into an appeal under Section 47, Civil Procedure Code. It is pointed out that as the point was taken by the District Judge, appeal against the order passed by him holding that the matter falls under the purview of Section 47 lies to this Court. The order passed on Ex. C-5 was by a former District Judge and was therefore res judicata in the Lower Appellate Court. The authority quoted for so treating the appeal is the judgment in C.M.A. No. 127 of 1920 where the learned Judges held that in the facts of that case they should exercise the power. It may be pointed out that the order was one passed in 1912 and I am being asked over 12 years after that time to allow the erroneous procedure taken on that order to be eliminated and practically that the parties should be absolved from the course they took. On the other side, it is represented that the fault, if any, was with Court and that the plaintiffs may have been misled by the order passed on Ex. C-5. It will be observed that there is no contention in the written statement that the plaintiff's suit was misconceived and even if there were, it is now too late for an appeal under Section 47. Further Muttiya v. Appasami I.LR.(1890) M. 504 shows that the petition, Ex. C-5, is perfectly legal under Section 47 although the petitioners therein had been previously obstructed. It was held there was nothing to prevent the decree-holder or purchaser who had been obstructed or resisted in his attempt to get possession of the property from making a fresh application for delivery. [See also Abdul Kareem Sahib v. Timmaraya Chetti (1914) 24 I.C. 512 a judgment of this Court]. The learned District Judge considered this question very carefully in paragraph 17 of his judgment. He held that the decision in Ex. C-5 was a decision on jurisdiction and that not having been appealed against and there being no prayer in the plaint in the suit to set it aside it was final as regards himself and barred the present suit being converted into an execution application and that in either view the suit viewed as an application for possession is out of time. Under Section 47(2) the Court is at liberty to treat a proceeding under this section as a suit or a suit as a proceeding but subject to any objection as to limitation or jurisdiction. It seems to me that here the plea of limitation must prevail. It is said that there are good grounds for excusing the delay and for allowing the matter to be converted into a proceeding. I am however unable to agree. I think that the suit being misconceived ab initio the plaintiffs are not entitled to ask me in second appeal for such a concession as this. I therefore think that the appeal fails on all these grounds and must be dismissed with costs.