1. The lower Appellate Court, confirming the order of the first Court, has dismissed the plaintiff's suit on the ground that it is barred by limitation. The Judge has applied the rule of one year, and has held that, because the suit was not brought within one year from 1869, when the claim to this property preferred in the execution department by the plaintiff's mother was rejected, the present suit is barred.
2. It seems that, in 1869, when, in execution of a rent-decree, this tenure was attached as belonging to one Rohini Dossee, the plaintiff's mother preferred a claim under Section 246 of the Old Code of Civil Procedure, alleging that she had purchased the tenure from Rohini Dossee, and the Court found that the purchase had been made after the attachment had taken place, and that, therefore, the alienation was void, and accordingly rejected the claim. But it appears that no sale was held, because the judgment-debtor paid off the amount of the decree. The effect of that was, that the attachment ceased; and any right which the plaintiff's mother acquired by purchase, even though pending the attachment, became valid, and nothing having occurred to injure her right, if any, she had no occasion to bring any suit. The Judge of the Court below says, that the fact that the decree in execution of which the property was attached was paid off by the judgment-debtor makes no difference whatever. In this view, we think that he is mistaken. The payment by the judgment-debtor of the decretal amount did away with the necessity for a sale, and the attachment being withdrawn, the purchased right of the plaintiff's mother stood good.
3. The respondents' pleader contends, that the finding of the Court, in 1869, that the conveyance was void, because it was effected while the property was under attachment, is now res judicata; and that the plaintiff's right derived from that conveyance was then and there done away with for ever, because he, or his predecessor in title, neglected to bring this suit within one year. But the finding of the Court in the execution department that the sale was invalid, only meant that the sale was invalid as against the judgment-creditor, and as against any purchaser who might purchase at a sale held in execution following that attachment. When the judgment-creditor was paid off, he had no further claim. The present suit has arisen out of a subsequent decree and subsequent attachment. On this occasion the same tenant having been sued by the representatives of the former zamindar, and the tenure having been attached in execution, the plaintiff put in a claim under Section 278 of the present Code, but omitted to fulfil certain conditions imposed on him by the Court, and the Court declined to register his claim or to adjudicate upon it. He brings his suit to establish his right; and we think it clear, under the circumstances, that he is entitled to have his suit tried.
4. The judgment of the lower Appellate Court must, therefore, be set aside and the case must go back to that Court to be tried on the merits. Costs will abide the result.