Tottenham and Agnew, JJ.
1. This was a suit brought by the assignees of the heir of the certificated auction-purchaser of certain immoveable property sold in execution of a decree against the defendant on the 22nd of April 1876. The plaintiffs' father was the holder of that decree, and the certified purchaser was Nobin Chunder Mitter.
2. The plaintiffs allege that their father was the real purchaser and that Nobin Chunder Mitter was only benamidar for him, and this allegation has been confirmed by a ladavipotro, executed by the heir of Nobin Chunder after the latter's death.
3. The plaintiffs claim, therefore, both as heirs of their father who, they say, was the real purchaser, and as assignee of the heir of the ostensible purchaser.
4. The lower Appellate Court, reversing the decree of the Munsif, has dismissed the suit on the ground that it is not maintainable. That Court was of opinion that the only manner in which an auction-purchaser or his assignee could obtain possession of the property sold to him, otherwise than by the voluntary act of the judgment-debtor, was by an application to the Court under Section 318 of the Procedure Code; and that the plaintiffs or Nobin Chunder Mitter having failed to obtain possession in this manner within three years from the date of the sale certificate, the right to possession was barred by Article 178 of Schedule II to the Limitation Act.
5. The lower Appellate Court, in holding that a regular suit for possession was not maintainable, relied upon a ruling of this Court in Kristo Govind Kur v. Gunga Pershad Surmah 25 W.R. 372 which was followed in the case of Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258. The case of Kristo Govind Kur v. Gunga Pershad Surmah 25 W.R. 372 does undoubtedly lay down the law in the manner understood by the lower Appellate Court. But the learned Chief Justice, in following that decision in the case of Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258 expressed some doubt as to its entire correctness.
6. On the other hand, this Court held in the case of Seru Mohun Bania v. Bhagoban Din Pandey I.L.R. 9 Cal. 602 that such a suit is maintainable: and in Krishna Lall Dutt v. Radha Krishna Surkhel I.L.R. 10 Cal. 402 it was held that the suit was maintainable if possession given under Section 318 had been in fructuous. And a Full Bench of the High Court of Allahabad in Jagan Nath v. Baldeo I.L.R. 5 All. 305 dealt with such a suit as being maintainable.
7. Quite recently another Division Bench of this Court composed of (Wilson and Beverley, JJ.) in a case not yet reported--Appeal No. 207 of 1884, decided on the 20th July last--followed the decision in Seru Mohun Bania v. Bhagoban Din Pandey I.L.R. 9 Cal. 602.
8. Our own opinion is in accordance with that decision; but with regard to the opposite rulings already cited, we felt a doubt whether we ought not to refer the question to a Full Bench. We have, however, had an opportunity of consulting the learned Chief Justice in the matter and have his authority for saying that he had no intention of laying down that no such suit could be under any circumstances maintainable; but that so long as the means provided by Section 318 are open to a purchaser, he is bound to have recourse to that section rather than bring a fresh suit.
9. In the present case it appears that the purchaser did endeavour to obtain possession in the shorter and more simple manner, but that he was opposed by a third party who actually brought a suit to restrain him.
10. There seems, therefore, to be no reason in law why the present suit should not be maintained. The lower Appellate Court is mistaken in supposing that, because the summary remedy is no longer available, therefore the purchaser's title is extinguished.
11. We, therefore, set aside the decree of the lower Appellate Court and remand the appeal to be heard and decided on the merits. Costs of this appeal to abide the result.