1. This second appeal can be disposed of on a short point. The 1st defendant and defendants Nos. 2 and 3 bad disputes concerning the possession of certain property whose income is the sub-jest-matter of this litigation. The Magistrate was appealed to. He held that the evidence as to possession on both sides was unsatisfactory and directed under Section 140 of the Code of Criminal Procedure, that a Receiver should be in charge of it. This was on the 30th January 1909. Subsequently a suit was brought by defendants Nos. 2 and 3 against the 1st defendant in December 1911, partly for a declaration and partly for possession, the declaration relating to the property now in question and possession to property which the 1st defendant was alleged to have trespassed on. The suit was eventually withdrawn without obtaining permission to sue again. After the date of this withdrawal, the Receiver appointed by the Magistrate delivered possession of the properties to the 1st defendant in March 1913. The present plaintiff obtained a money decree against defendants Nos. 2 and 3 and attached the suit property which represents the income which was in the hands of the Receiver and which he handed over to the 1st defendant in April 1913. The 1st defendant intervened with a claim petition which was allowed. The suit is for a declaration that the plaintiff is entitled to attach the income as belonging to defendants Nos. 2 and 3. The lower Appellate Court decreed the plaintiff's claim. We are unable to agree with it.
2. We are not, as at present advised, prepared to agree with the contention of Mr. Ananthakrishna Aiyar that the withdrawal of the suit operates as a bar against the plaintiff agitating the right of defendants Nos. 2 and 3. Having regard to the frame of that suit and to the observations in Rajah of Venkatagiri v. Isakapalli Subbiah 26 M.P 410 it is doubtful whether anything more than the remedy was barred by the withdrawal of the suit. However that may be, in our opinion, the claim of defendants Nos. 2 and 3 was extinguished by the combined operation of Article 47 of the Limitation Act and of Section 28. In Article 47, the suit contemplated is one for possession by a party against whom an order was passed by the Magistrate. It may be that to such a suit it is not necessary that the Receiver should be a party. The principle underlying the article is that, as possession is outstanding, the party who is out of it should sue within 3 years to recover it, If he fails to sue within that period then under Section 28 the right to possession is extinguished. This is substantially the view that was taken in Paladugu Parasuramayya v. Valli Ramachandradu 21 Ind. Cas. 564 : 38 M.P 432 : 14. M.L.T. 302 : (1913) M.W.N. 871 and we think that the decision in Rajah of Venkatagiri v. Isakapalli Subbiah 26 M.P 410 does not affect this rule.
3. As defendants Nos. 2 and 3 had no subsisting right on the date of the attachment, there was nothing for the plaintiff to attach and the suit should have been thrown nut on this short point. We reverse the decree of the lower Appellate Court and dismiss the suit. Plaintiff will pay the costs of the 1st defendant in the Court of the first instance alone. As the lengthy trial was necessitated by the failure of the 1st defendant to raise the proper issue in time, we do not think he is entitled to any costs either in the lower Appellate Court or in this Court.