1. The suit has been dismissed as barred under Article 11 -A of Schedule I of the Indian Limitation Act as having been brought more than one year after an order was passed under Rule 101 of Order 21, Civil Procedure Code. The appellants are the purchasers of one-fourth right in certain properties which were mortgaged under P-I.K. Appala Narasimharaju and six others executed the mortgage, Ex. P-I, on 26th October, 1915. The mortgaged property consisted of about 24 acres which were held jointly by the several mortgagors. One of the mortgagors, K. Appala Narasimharaju, executed a sale deed of a fourth of the property under Ex. P-2 dated 18th February, 1918, for a stated consideration of Rs. 300, which was directed to be paid to the mortgagee under Ex. P-I. The property that was sold was 6 acres being an undivided one-fourth of a property which is described to have been held jointly by the vendors and others and to be situated within the boundaries given in paragraph 3 of Ex. P-2. The mortgagee filed O.S. No. 769 of 1925 to recover the amount due under Ex. P-I. But unfortunately he did not implead the subsequent purchaser under Ex. P-2. A final decree was passed in that suit and the properties were brought to sale and purchased by the decree-holders. They obtained possession of the properties purchased by them and thereupon the plaintiffs in this action filed E.A. No. 170 of 1938 asking for re-delivery of the property which had been purchased by them. This was refused by an order Ex. D-5, dated 20th October, 1938. The present suit was filed on 8th December, 1940, for redemption of the mortgage, Ex. P-I and for delivery of the properties mentioned in the schedule attached to the plaint on the ground that those properties had been allotted as and for the one-fourth share which he purchased, or, in the alternative, for one-fourth share of the lands that were mortgaged under Ex. P-I. No doubt, there is no definite prayer that the one-fourth of the entire mortgaged properties should be given to him after partition, but that is obviously the sense and intendment of the plaint. This was sought to be made clear by an application for amendment. But, curiously, though the application was made three months before the suit came on for trial, it was dismissed and that has led to some complication. The application was dismissed on the ground that the nature of the suit will be changed. But it is difficult to see how it is. In paragraph 8, Clause (b) the plaintiff asked in the alternative that he might be given one-fourth share of the mortgaged properties. The amendment was that it might be given to him after partition. This is merely clarifying the position which had already been put forward in the plaint and it was obviously a case for allowing the amendment. Too technical a view, I regret to find, is being taken by the subordinate Courts of late in discharging their duties as to amendments. All amendments which do not throw an unnecessary and unreasonable burden on the other side should be allowed and only those amendments which cannot be compensated by an award of costs--?, they alone--should be refused. Here is a case in which the plaint itself had obviously asked for a delivery of the one-fourth share of the entire properties and that was obviously meant to be after partition; and when the matter was sought to be put more clearly, all kinds of technical pleas were evidently advanced by the defendant; and as I said before, it is regrettable to find that they were upheld by the District Munsiff. I allow the formal amendment. This, however, does not solve the difficulty raised in the suit. The main defence was that the suit is barred by limitation as it was filed more than one year after date of the order dismissing E.A. No. 170 of 1938. This objection has been upheld; but I am unable to agree with the decision of the lower Courts. The bar under Rule 103, of Order 21, runs in these terms:
Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99, or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit (if any), the order shall be conclusive.
2. Rule 63 of the same order runs in these terms:
Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.
3. Leaving out the other portion of the two rules which are not material for our purpose, the wording in so far as it is material may be set out thus:
Rule 63. Rule 103.
May institute a suit to establish the right 'May institute a suit to establish the right
which he claims to the property in dispute. ' which he claims to the present possession
of the property. . . '
4. The difference between the expression ' May institute a suit to establish the right which he claims to the property in dispute,' and the expression ' May institute a suit to establish the right which he claims to the present possession of the property' is, I think, immaterial. As has been held by this Court the order in the execution department will be conclusive as regards the title of the parties if no suit is filed within one year. So far as the execution department is concerned enquiry is no doubt confined to the question whether the person objecting to delivery or claiming re-delivery in one case or objecting to the attachment in the other case was in possession in his own right and not on behalf of the judgment-debtor. But once an order is made against a particular party, be he the decree-holder or the objector, the suit should be filed by the unsuccessful party and if not, the right which he claims to the property will be lost. It is enough in this connection to refer to a recent decision of the Chief Justice and Rajamannar, J., in Kaleswarar Mills, Ld. v. Govindaswami Naicker : AIR1946Mad76 . Rajamannar, J., who delivered the judgment has gone through the question at length and after referring to the earlier decisions of this Court and of the other Courts, has pointed out that if the title which is put forward as the basis of the suit is the same as the title which is put forward in the execution proceedings as the basis for an order in his favour, then Rule 103 will be a bar but not otherwise. One case which is referred to in that judgment is instructive and that is the decision of the Calcutta High Court in Ambica Charan Bakta v. Ram Prosad Chatterjee 30 C.W.N. 163. There, the landlords obtained a decree for arrears of rent and in execution of that decree purchased the holding and took possession. Later on, they were dispossessed by and order of the Court passed at the instance of the defendants who claime possession of the property on their own account and not on behalf of the judgmentdebtors. More than a year afterwards the landlords abandoned the rights under their auction-purchases in execution sale and filed a suit for ejectment on the ground that the tenants wrongfully parted with the holding, that the transfer worked out a forfeiture of the tenancy and that the transferees were therefore liable to be ejected. The order passed by the Court in the execution proceedings was sought to be relied on to defeat the plaintiffs' claim for possession. It was then pointed out that the cause of action for the two suits, one under Rule 103 and the other on forfeiture of the tenancy on account of the alienation were quite different. It was further pointed out that in the later suit the plaintiffs actually acquiesced in the validity of the order passed under Order 21, Rule 101 and in fact gave up their rights under their purchase in execution sale. But they only claimed rights which were given to them under the Bengal Tenancy Act. It was pointed out that in such cases, the one-year rule will not apply. In the present case, unfortunately, the petition on which the previous order was passed has not been exhibited. It is not known what exactly the allegations were. Therefore it cannot be said that the cause of action or the title on which the present suit is based was the very same title on which the relief was asked in E.A.. No. 170 of 1938. That is enough to dispose of the matter. But it may be pointed out that there is yet another rule which is laid down by this Court and that is, if the relief that is asked in the later suit is not one which the plaintiff could have got in the execution department, then the fact that he did not pursue the remedies given under the execution chapter will not bar the later suit. The present suit is one for redemption. The plaintiff recognises that without redemption and without offering to pay the amount due under the mortgage he cannot get the relief of possession. That is one distinction. The other is that in the present suit he asks, at any rate in the alternative, for partition and delivery of his one-fourth share. This, again, he cannot get in the execution department. If, in the execution department, he had said that he was entitled to an undivided one-fourth of the whole, he would have been told that he could not get relief by way of partition in the petition E.A. No. 170 of 1938. For these reasons I hold that the suit was not barred under Article 11-A of the Limitation Act.
5. There is yet another question raised that the suit is only one for partial redemp-tion and that it does not lie. The mor tgagee decree-holder has already become the owner of the other three-fourths, his purchase ofthe other one-fourth being invalid as he did not implead the purchaser of that one-fourth. It is a matter for consideration by the lower appellate Court whether, when the mortgagee has himself become the owner of a part of the mortgaged property, the indivisible charcter of the mortgage has not been split up and whether a suit bya purchaser of the remainder of the mortgaged property is not entitled to redemption. Even if a finding is to be recorded against the plaintiffs on that point it would still be a matter for consideration by the Subordinate Judge whether on the facts of this case he ought not to allow the plaintiffs to redeem the whole property by paying the whole amount. The decree of the lower appellate Court is set aside and the appela remanded for disposal according to law in the light of the observations made above.
6. Court-fee paid on the memorandum of second appeal be refunded; other costs shall be provided for in the revised decree of the lower appellate Court.