1. The plaintiff is the appellant before us. The suit related to two items. The contesting defendants as to item 1 are defendants 1, 2 and 5. The contesting defendant as to item 2 is the 3rd defendant. The lands are claimed by plaintiff as jirayati lands in the Zamindari of Vizianagram. As to item 2, the 3rd defendant claims it as his inam. The Maharaja of Vizianagram is therefore also impleaded as the 4th defendant.
2. The Courts below dismissed the suit as barred by limitation under Article 47 of the Limitation Act. In the year 1907 there was a charge for criminal trespass in respect of these items by the predecessor-in-title of defendants 1, 2 and 5 against the vendors of the plaintiff and the matter ended in favour of the former (Ex. D, which was confirmed on appeal in 1908, Ex. IX). The present suit is filed in April, 1920 more than ten years after Exs. D and IX.
3. As to item 1, we agree with the Courts below that thc suit is barred. Mr. T. Ramachandra Rao, who appeared for the appellant-plaintiff, contended that Article 47 of Act XV of 1877 applied only to orders under Chapter XII of the Criminal Procedure Code of 1898 and not to an order under Section 522. The article refers to order under Chapter XL of the Criminal Procedure Code of 1872. Under Section 3 of the Code of 1898 all references to the old Code and its sections and chapters must be read as referring to the new Code and its corresponding sections and chapters. Chapter XL of the Code of 1872 corresponds to Chapter XII of the Code of 1898 partly and to Section 522 partly. There is no reason to confine the operation of Article 47 to order under Chapter XII only. It is also contended that an order restoring possession under Section 522 is an order respecting the possession of property within the meaning of Article 47. We do not see any force in this contention. The case in Bolaichand Ghosal v. Samiruddin Mandal (1891) ILR 19 C 646 cannot help the appellant. In that case the right which was the basis of the suit did not exist at the time of the criminal proceedings and was not affected by the order in then proceedings. The appeal, therefore, fails as to item 1 and is dismissed with costs of respondents 1 and 5, the costs being proportionate to its value.
4. As to item 2 we are not able to agree with the view taken by the lower Courts. If defendants 1, 2 and 5 were the contesting defendants as to this item, the judgment would have been correct. But they disclaim all interest in the land. They at one time claimed as tenants of the Maharajah. But in Survey Proceedings, the Maharajah's title was found against and 3rd defendant was found to be an inamdar and the Maharajah submitted to the decision of the Survey Officers, and defendants 1, 2 and 5 have also acquiesced in that decision though the plaintiff does not.
5. Now we think that the plaintiff in suing the 3rd defendant has not got to set aside the order of 1908. The 3rd defendant was not a party to that order; nor did that order uphold his possession; nor does the 3rd defendant claim under the party successful in the criminal dispute. We agree with the observations of Pontifex, J. in Aukhil Chunder Chowdhury v. Mirza Delwar Hossein (1880) 6 CLR 93. It is; true that in that case, there is the additional fact that the order had been set aside. It is also true that Hill and Rampini, JJ. doubted the correctness of the decision of Pontifex, J. in Jogendra Kishore Roy Chowdhury v. Brojendra Kishore Roy Chowdhury ILR (1896) C 731 and referred the matter to a Full Bench. The Full Bench found it unnecessary to decide the wider question raised by Hill and Rampini, JJ., and held, in that case, that the suit was between the parties to the order and to that extent agreed with Pontifex, J. Whatever the exact interpretation of Pontifex, J.'s judgment we are of opinion that an order under Section 522 of the Code, 1898 can only be binding between the parties to the order and can have no finality in favour of one who is not a party and does not claim under a party. To give such an effect to it is to create a new species of orders in rent which is opposed to fundamental principles, and leads to grave anomalies in the working out of the article. We do not think that Devadoss, J. has taken a different view in Second Appeal No. 14 of 1922. The merits have not been gone into with .regard to this item. The suit will have to be remanded so far as item 2 is concerned. Costs to abide result.
6. The appellant will have a refund of the proportionate part of the Court-fee.