Skip to content


Sheo Pergash Tewari Vs. Bukshi Ram Pergash Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal453
AppellantSheo Pergash Tewari
RespondentBukshi Ram Pergash Lal
Excerpt:
limitation act (xv of 1877), schedule ii, article ii - civil procedure code (act xiv of 1882), sections 280, 283--mortgagee, suit by, against mortgagor and third party who has intervened and obtained an order under section 280, civil procedure code--execution of decree. - .....order was passed by the execution court releasing the property in dispute from attachment.3. the present suit was brought by the plaintiff mainly against defendants nos. 1 to 4, making defendants nos. 5 and 6 also defendants to establish his right under the mortgage, and to obtain an order for the satisfaction of that mortgage, by. the sale of the hypothecated property, on the ground that his mortgage was prior in date to the purchase of the defendants nos. 1 to 4, and also upon other grounds mentioned in the plaint.4. the present suit was admittedly brought more than one year after the date of the order which was passed in favour of the defendants nos. 1 to 4, under section 280 of the code of civil procedure.5. upon these facts the court of first instance dismissed the suit, as barred.....
Judgment:

Mitter and Agnew, JJ.

1. This is an appeal against the order of the District Judge of Shahabad remanding the suit to the Court of First Instance which had dismissed it, on the ground that it was barred by limitation under Article 11 of Schedule II of the Limitation Act. The Judge was of opinion that the suit was not so barred. The plaintiff alleged that defendants Nos. 5 and 6 executed a mortgage in his favour in the month of Aughran 1278, hypothecating the land in suit as collateral security for the money taken under the mortgage deed; that he obtained a decree against defendants Nos. 5 and 6, and in execution of it attached the property in dispute. It appears that before the property in dispute was so attached it had been sold in execution of a decree obtained by defendants Nos. 1 to 4 against defendants Nos. 5 and 6, and purchased by the decree-holders themselves, viz., defendants Nos. 1 to 4.

2. Upon the plaintiff proceeding to sell the attached property defendants Nos. 1 to 4 intervened, and under Section 280 of the Civil Procedure Code an order was passed by the execution Court releasing the property in dispute from attachment.

3. The present suit was brought by the plaintiff mainly against defendants Nos. 1 to 4, making defendants Nos. 5 and 6 also defendants to establish his right under the mortgage, and to obtain an order for the satisfaction of that mortgage, by. the sale of the hypothecated property, on the ground that his mortgage was prior in date to the purchase of the defendants Nos. 1 to 4, and also upon other grounds mentioned in the plaint.

4. The present suit was admittedly brought more than one year after the date of the order which was passed in favour of the defendants Nos. 1 to 4, under Section 280 of the Code of Civil Procedure.

5. Upon these facts the Court of First Instance dismissed the suit, as barred by. Article 11 of the schedule to the Limitation Act. That article says: 'By a person against whom an order is passed under Sections 280, 281, 282, or 335 of the Code of Civil Procedure, to establish his right, to or to the present possession of the property comprised in the order.'

6. The District Judge has overruled the plea of limitation based upon this article, on the ground that the present suit is not one to establish the plaintiff's right to the property comprised in the order, because the District Judge thinks that the decree-holder has no right to the property which he can establish.

7. Although we agree in the result, viz., that the present suit is not barred under Article 11, we are unable to take the same view which the District Judge has taken of the article in question. That article refers to suits which are contemplated under Section 283 of the Code of Civil Procedure, which says: 'The party against whom an order, under Sections 280, 281, or 282, is passed, may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.' Now, under this section, the decree-holder, who fails in a proceeding between himself and a claimant under Section 280 of the Code of Civil Procedure, may institute a suit to establish his right to the property which he claimed in the proceeding before the execution Court, viz., the right to attach and sell the property which was claimed by the claimant in satisfaction of his decree. That is, in our opinion, the correct construction of Article 11 which refers only to suits contemplated by Section 283.

8. That being so, the question which calls for decision in this case is, whether the present is a suit which comes within the purview of Section 283. It seems to us that the suit contemplated by Section 283 is a suit which may be brought by the unsuccessful party in a proceeding under Sections 280, 281 or 282 to establish a right to the property in dispute, which right was the subject-matter of litigation in the execution proceedings.

9. Now, in this case, the right which was in dispute in the proceeding under Section 280 is not the right under which the present suit has been brought, and that is quite clear from this consideration, viz., that even if the execution Court had found the right upon which the present suit is brought established, it could not give effect to it under Section 280. On the other hand, even if that Court had been satisfied of the existence of the right upon which the present suit is brought, it would have been bound, under Section 280, to release the property, because it was established that the property in dispute which was sought to be attached was then in the possession of the defendants Nos. 1 to 4. The right that was instigation in the proceeding under Section 280 was therefore a right to attach and sell the property in dispute in execution, of the decree which the plaintiff had obtained against defendants Nos. 5 and 6. So far as that right is concerned, the present suit is barred, but as regards the other right upon which the plaintiff has brought this suit, viz., that he held a mortgage prior in date to the purchase of the defendants Nos. 1 to 4, and that the purchase of the defendants Nos. 1 to 4 was not real, the present suit is not barred under Article 11 of the Limitation Act. We therefore agree with the District Judge, though upon different grounds, that the present suit is not barred by Article 11 of Sell. II of the present Limitation Act.

10. We dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //