Srinivasa Ayyangar, J.
1. In the suit from which this second appeal arises the appellants were defendants. The plaintiff's action was for recovery of possession of the suit property and mesne profits on the ground that in a previous litigation between the parties which finally ended in Second Appeal No. 457 of 1915 on the file of this Court the plaintiff's title to the property was declared and recognized. This suit, however, was rendered necessary because, taking advantage of the fact that in the District Munsif's Court in that litigation the defendants who were the plaintiffs obtained a decree, they had gone soon after to the Magistrate and on the basis of that decree obtained possession of that property with reference to which the Magistrate had made certain orders and appointed a Receiver under Section 146, Criminal P.C.
2. Three contentions have been raised before us by the learned Counsel for the appellants. His contention was that the plaintiff's suit is barred by the law of limitation. In this connexion it may be noted that, though limitation has been raised perhaps as usual in most cases by the defendants in their written statement the exact manner in which it is now contended on their behalf that the claim is barred by limitation has not been indicated. The learned Counsel's argument was this: it was really twofold. First it is stated that on 19th April 1915, the Magistrate made the order by which possession of this property was given to the present defendants. It was argued by him that under Article 47, Lim. Act, it was incumbent on the plaintiff to institute a suit within three years of the date of the order of the Magistrate and that otherwise the suit should be held to be barred by the law of limitation. There was some question raised on behalf of the respondent by Mr. Rajah Aiyar that the real date of the order was not the 19th April, but the 19th November, and, if the latter date should be the real date, no question of limitation arises with regard to this order of 19th April, Ex. G and the suit was within three years of 19th November 1915. There is, no doubt, in the record some doubt and discrepancy with regard to the date of this document? It becomes material to observe that the plea of limitation raised by the defendants was not directed with regard to this order or the date thereof specifically and that, therefore, the plaintiff had no notice that the date of this order would become in any manner important to be considered. We may, however, observe generally speaking though, no doubt, questions of limitation may be allowed to be raised even in second appeal and even though not raised originally in the defence, still, if the decision on the question of limitation should depend ultimately on certain facts and if the other patry to the action should have had no notice of the contentions of the party setting up the plea of limitation with regard to these facts, it would be unjust to allow such a plea to be raised at a very late stage. In this ease, however, there seems to be really no doubt that the 19th April was the real date of the order. But then comes the question whether this Article 47 is the article applicable to this present action. The article says that the suit must not only be 'one to recover property comprised in an order of the Magistrate' -and so far as that is concerned this suit is alright-but that
the parson suing, that is, the plaintiff must be a parson bound by an order respecting the possession of immovable property made under the Criminal Procedure Code, 1898.
3. Taking those words substantially, there can be very little doubt that the suit contemplated by the first column of that article is a suit virtually to set aside the effect of a magisterial order with regard to the possession of immovable property. Now, can this suit be so described? It seems impossible to regard this suit as capable of being so described, What happened is this. An original order of the Magistrate was passed in 1909 and thereupon the present defendants as plaintiffs filed a suit and obtained a decree in the District Munsif's Court. They produced this decree before the Magistrate who had previously made the order and that Magistrate, acting on this decree of the District Munsif gave possession to them. The order, therefore, of the Magistrate cannot for the purpose of this article be regarded as an order promulgated under the Criminal Procedure Code in the interest of public peace. Though there may be some room for the contention, having regard to the words 'respecting possession of immovable property' and so on, that even such an order would be comprised within the terms of the first column of Article 47, still the expression any person bound by an order respecting the possession' puts it beyond all doubt that the nature of the order contemplated by this article must be one by which under the powers given by the Code of Criminal Procedure the Magistrate issues certain orders in the interests of public peace. When the Magistrate, however, is merely carrying out by his orders the decrees of civil Courts, it seems to me to be clear that such an order is not one comprised in or contemplated by Article 47. Now again, can the plaintiff in this case be regarded as a person bound by an order respecting the possession of immovable property? The matter was being litigated at the time in the civil Court and the expression 'bound' in the article has clear and undoubted reference to the order being binding on a person subject to adjudication by the civil Court. Therefore, when a person is a party to a litigation in a civil Court and an order is made by the Magistrate with regard to the possession of immovable property as the result of the adjudication in the civil Court, such a person cannot apply or properly be described as a person bound by the order of the Magistrate. Again if the whole of the language of the article should be taken into consideration it is clear that the nature and scope of the suit intended to be comprised in the article must be one whose main object is to set aside the effect of the summary order of a Magistrate with regard to possession in the interest of public peace. In this suit the cause of action really is the declaration made by the civil Court in the previous action and, therefore, also the proper article applicable to this suit is not, in our judgment, Article 47. Therefore, the contention that the claim is barred by limitation based on the order, Ex. G in the case, fails.
4. The next contention that was put forward by the learned Counsel for the appellants was that, 'looked at in another way also, the claim of the plaintiff must be held to be barred by limitation. His argument was this. An order was made by the Magistrate attaching this property and appointing a receiver in respect of this property on 29th October 1909. The learned Counsel Mr. K.V. Venkatasubramanya Aiyar argued that under Article 47 here there was the plaintiff who was a person bound by that order, that order was in respect of the possession of immovable property and that as soon as that order was made the duty was cast on him, if he was so minded and if he was anxious to set aside the effect of that order, to institute a suit for the recovery of possession of the property. He contended that, even though the only order that was passed by the Magistrate was an order of attachment, still the suit that should be filed and that was required to be filed by the person whose rights were affected by the order must be a suit for possession or recovery of the property. It was necessary for him to contend to that extent.
5. His further argument was that, if a person who was bound to institute such a suit for the recovery of possession during the statutory period fails to do so, his right to the property itself becomes lost by virtue of the terms of Section 28, Lim. Act, and then it would be open to him to contend that the plaintiff who comes into Court in 1918 having his claim on his title may be easily shown to be a person who had lost title by limitation. For the purpose of establishing this contention it was necessary for the defendants to show that the plaintiff was, as soon as this order of the Magistrate of October 1909, was passed, bound at the peril of losing the property itself to institute a suit for the recovery of possession of the property. Now then, is it necessary for every party affected by an order under Section 146 or any similar section to institute a suit for possession of the property? If there was only an order of attachment issued by the Magistrate and even 'if the Magistrate should actually take possession of the property and even though the Magistrate should appoint a receiver to be in possession of the property, what happens in the eye of the law is that the property is placed in custodia legis. It is held in the custody of the Court for the benefit of the person who may eventually and finally succeed in establishing his title to the property. In such cases it has been abundantly held in numerous decisions both of this Court and elsewhere that no party is under an obligation to institute a suit for possession of the property. No doubt there may be foolish plaintiffs that may do so but the question is not whether such a suit may not be instituted or cannot possibly be instituted but whether it is necessary that such a suit should be instituted. I remember a case in which Sir John Wallis, late Chief Justice of this Court, held that when property is in the hands of the receiver it was not at all necessary that the receiver should be made a party and that possession of the property being in the hands of the receiver and therefore, in the hands of the Court it was only necessary for the parties to establish their right against the other contending parties and that the Court will give effect to the adjudication by the Court as against the other contending parties. That is a very sound principle Now, if, therefore, the only order that was passed under Section 146 is one of attachment or one of placing the property, in the hands of the receiver, no suit for the recovery of possession of the property it seems to me, is necessary. Again, there are the words in the article 'to recover the property comprised in such order.'
6. Now the plaintiff is described as a person bound by the order and the suit is described to be one to recover the property. The expression 'to recover' really points to and implies that the recovery of the property must be the relief that is claimed in the action against the other party to the suit, namely, the defendant, and, taking into consideration the whole of the language of that clause, it is abundantly clear that this article was intended to apply only to cases where by the order of the Magistrate possession has been confirmed or given to the other party to the suit and it, therefore, becomes necessary for the intending plaintiff to institute a suit for the recovery of that property from the opposite party. If the' plaintiff can establish his right without being under a necessity to file a suit for the recovery of possession of the property in any other form of action, it follows that the article applicable would not be this. Now in this case there was only a receiver appointed in respect of the property; the property, therefore, was in custodia legis and it was not necessary for the plaintiff even if he bad intended) to institute some suit or other, to institute a suit for the recovery of possession of the property. He might have instituted a suit merely to have his right to the property declared. If so, the article would not apply and a fortiori the consequences of the operation of Section 28, Lim. Act, cannot follow. Before passing off from this point reference may be made to two of the cases which were cited by the learned Counsel for the appellants, one as being in his favour and the other, a decision which he tried to distinguish. In the case of Rajah of Venkatagiri v. Subbiah  26 Mad. 410 it was held by Benson and Bhashyam Aiyangar, JJ., that, when there is a mere order of attachment by the Magistrate, there is no real cessation of possession. At p. 413 (of 26 Mad.) they say:
The actual or physical possession is with the Magistrate who is not and cannot legally be made a party to the suit...the Magistrate, cannot be regarded as having dispossessed either party nor can either party be regarded as having discontinued possession. If no other person has taken possession of the property as his own or if the so-called possession of another person is mere detention or possession on behalf of the true owner, there can have been no dispossession or discontinuance of possession in law.
7. The learned Counsel for the appellants tried to criticize this passage in the judgment of the learned Judges, I must say somewhat hypercritically on the ground that it is not correct to say that, when a party is by order of the Magistrate prevented from going upon the property formerly in his possession, there is no cessation of possession or dispossession in law. No doubt there is some room for such an argument but the cessation of possession and the dispossession which the learned Judges were referring to in that passage were legal cessation and legal dispossession and not merely physical dispossession. The judgment in that case is a clear authority for the position that, if the kind of suit that has to be instituted on the Magistrate's order is merely a suit for a declaration, then Article 47 would have no application. In fact the same has been decided in this Court as early in Akilandammal v. Periasami Pillai  1 Mad. 309 and was also acted upon by other Courts both in Allahabad and Calcutta. The case, however, on which the learned Counsel for the appellants relied very strongly in support of his contention was the case of Solai Ammal v. Jogi Chetty  10 M.L.W. 637. In that case no doubt it does appear that the learned Judges in a case where a receiver was appointed by a Magistrate and the receiver was in possession of the property for over three years held that by reason of the combined operation of Article 47 and Section 28, Lim. Act, the right of the person to the property became extinguished. This is what they say:
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 three years to recover it.
8. It does not appear to have been argued in that, case that if the property were in the hands of 'the receiver and the receiver was in possession of it, no suit to recover the property or possession of the property was liable to be instituted or could 'be instituted against him by some party who is not in possession of the property. The learned Judges conceded that the receiver was not a necessary party and,. if the receiver was the person in possession it is difficult to understand how a suit for possession could be instituted against any other. It seems to have been assumed rather than decided as the result of any consideration or argument that the nature of the suit to be instituted by the plaintiff in such a case would necessarily be only a suit for the recovery of possession of the property. In any case the learned Judges seem to have proceeded on the footing that the. suit contemplated is one for possession by a party against whom an order was passed by the Magistrate because the suit before them was for possession of the property. But as it is clear that it is not in any case necessary that a suit in the circumstances should always be a suit, for the recovery or possession of property it follows that it is not in every case in which an order of the Magistrate is passed that a suit for recovery should be instituted. Even assuming that the decision in the last cited case would govern the present case we feel that, having regard to the numerous other decisions both of this Court and of the other 'High Courts we should prefer to follow the other decisions.
9. The last contention raised on behalf of the appellants was that the lower Courts were wrong in considering that the right of the plaintiff in dispute in their suit was res judicata by reason of the previous decision in the second appeal in the previous litigation. Mr. Venkatasubramanya Aiyar wished to argue that, because the second appeal in the previous suit arose from' a fait instituted in a Munsif's Court and though the present suit was one instituted in a Subordinate Judge's Court, as the present suit, having regard to its value, could not have been instituted in a District Munsif's Court, the rule of res judicata as enunciated in the Procedure Code would not apply. It may be so but I find that this ground has not been taken even in the grounds of appeal to this Court. The question was not raised or argued in the lower Courts and having regard to the fact that it is an objection of a technical character, I see no reason why I should allow the appellants to raise the point at this stage. If, however, I was satisfied that the interests of substantial justice in the case require that the appellants though at this stage should be allowed to take up the point and argue it, I should have been disposed to allow them to do so. But I am not so satisfied. These are the only points that have been taken and argued in this second appeal, and, as I have rejected all the contentions of the appellants it follows that the second appeal is dismissed with costs.
10. I agree. In my opinion it is clear that Article 47, Limitation Act, does not apply to suits brought in consequence of an order made by a Magistrate under Section 146, Criminal P.C. It was decided in Akilandammal v. Periasami and Goswami Ranchor Lalji v. Sri Girdhariji  20 All. 120 that an order of attachment under Section 146 of the Code was not an order respecting the possession of immovable property within the meaning of Article 47, Limitation Act, and I think that is clearly so. Under Section 146 of the Code the Magistrate makes a finding either that none of the parties to the proceedings was in possession or that he is unable to satisfy himself which of them was in possession at the time in question. He does not make an order regarding possession but on either of those findings he makes an order of attachment. In Rajah of Venkatagiri v. Subbah it is assured all through that Article 47 is applicable (only to a case in which a magistrate under Section 145 of the Code confirms the possession of one party or of the other.' And, as pointed out by my learned brother a suit to which Article 47 applies is a suit to recover possession. The attachment made by the Magistrate under Section 146 of the Code is not a legal dispossession of any party who has a legal right to possession. As stated in Rajah of Venktagiri v. Subbiah and also in Beni Prasad Koeri v. Shahjada Ojha  32 Cal. 856 the possession of the Magistrate is possession on behalf of such of the parties as may eventually prove themselves entitled to possession. I. agree with my learned brother that with the greatest respect we cannot follow the view taken in Solai Ammal v. Jogi Chetty in which the matter does not seem to have been very fully discussed. Mr. Venkatasubrahmanya Aiyar has suggested that the position is altered if the Magistrate appoints a receiver. As to that I cannot agree with him. The receiver appointed is merely an officer of the Magistrate's Court under the Magistrate's orders and his possession cannot really differ in character from that of the Magistrate. I agree, therefore, that the appeal must be dismissed with costs.