W. Comer Petheram, C.J., Mitter, Prinsep, Wilson and Tottenham, JJ.
1. The question referred to the Full Bench is stated in these words: 'Is this suit barred by limitation?' And the reason for the reference is that the learned Judges doubt the correctness of the case of Krishna hall Dutt v. Radha Krishna Surkhel I.L.R. 10 Cal. 402, followed by the Lower Appellate Court in the present case.
2. The suit was brought to recover possession of a 4 annas share of Mouzah Mukannagur, upon the allegation that the defendant No. 2 had dispossessed the plaintiff on the 31st of Assar 1292 (which was some day in July 1885); and the suit was instituted on the 7th of August following. The plaintiff's case was that he had purchased the property at auction in execution of his own decree against one Gopal Das Banerjee on the 3rd of March 1875; that he had obtained possession through the Court, and had enjoyed possession by the receipt of rent until disturbed and ultimately ousted by the defendant No. 2.
3. Gopal Das Banerjee had, it was alleged, acquired the property by purchase at auction in execution of a decree against Jogodanund Gossami on the 8th of January 1873, and had obtained possession through the Court on the 10th of August of that year.
4. Among the pleas raised by the defendants was that of limitation; for it was contended that the plaintiff, who had purchased the property in 1875, had never enjoyed any possession of it; and that his predecessor in title, Gopal Das Banerjee, had likewise failed to obtain any real possession. The defendants are two in number, the first being the son of the Jogodanund Gossami, whose interest in the property was sold in execution of a decree in 1S68; and the second being a person claiming possession as izaradar under him.
5. On the point of limitation the defendants' case is that the possession of Gossami was never disturbed by the execution proceedings either against Jogodanund, or against Gopal Das Banerjee. The Courts below have negatived the plaintiff's allegation that he ever had substantial possession of the property.
6. The question, therefore, whether the present suit is barred by limitation or not depends upon the legal effect to be given to the symbolical possession, as it is called, obtained on the 10th of August 1873 by Gopal Das Banerjee as against the father of defendant No. 1. For this suit was instituted within 12 years of that date.
7. The symbolical possession, obtained by the plaintiff in 1875, would not. affect the defendants who were not parties to the execution proceedings against Gopal Das Banerjee.
8. We are of opinion that the rule Iaid down in the Full Bench case of Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584, is. applicable to this case, and that its application saves the suit from the bar of limitation. That was a suit in which the assignee of a decree for possession of certain immoveable property had been put in formal possession by process of execution under Section 224* of Act VIII of 1859, and had then sold his interest to the plaintiffs, who had since been unable to obtain possession, and sued to recover it from the original defendant. The Full Bench held that the symbolical possession obtained by the plaintiffs' vendor was effective as against the judgment-debtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation.
9. In the present case the Court of First Instance held,- and we think rightly held-that the principle there laid down as to symbolical possession obtained by the decree-holder under his decree, is equally applicable to the case of a purchaser at auction in execution of a decree. It is the only mode in which the Court can give the purchaser possession, and as against the judgment-debtor it is effective for all purposes.
10. The case noticed by the Division Bench which referred this question to the Full Bench, Krishna Lall Dutt v. Radha Krishna Surkhel I.L.R. 10 Cal. 402, was decided without reference to the earlier Full Bench case which was apparently not brought to the notice of the Judges.
11. By applying the principle laid down by the Full Bench in Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584, we find that the judgment-debtor was actually in possession on the 10th August 1873, and was entitled to be in possession again from that or any subsequent date when he was dispossessed by the previous owner.
12. The present suit having been instituted within 12 years of the 10th of August 1873, our answer to this reference must be that the suit is not barred by limitation.
13. The result is that the decree of the Lower Appellate Court must be set aside and the case must go back to be determined on the merits.
How it is to be delivered when in the occupancy of ryot.
*[Section 224: If the decree be for land or other immoveable property in the occupancy of ryots or other persons entitled to occupy the same, the Court shall order delivery thereof to be made by affixing a copy of the warrant in some conspicuous place on the land or other immoveable property, and proclaiming to the occupants of the property by beat of drum, or in such other mode as may be customary-at some convenient place or places, the substance of the decree in regard to the property.]