McDonell and Beverley, JJ.
1. On appeal the Additional Judge held that the suit was not barred by limitation, but that it was bad on the second ground.
Against this latter finding, the plaintiffs have preferred a second appeal' and the respondents seek to uphold the decree of the lower Appellate Court on the ground of limitation. It is contended that they are not at liberty to do this, not having given notice to the other side under the provisions of Section 561 of the Code; but we think that, under the terms of that section, it was not necessary to give the appellants notice.
2. The Judge has disposed of the question of limitation, relying on the authority of the case of Ram Kishan v. Bhawani Dass I.L.R. 1 All. 333; but the circumstances of that case were different from those of the present, and the decision is, therefore, not applicable. In that case it was held that a suit to recover the sale proceeds paid away under an order of the Judge, which was made without jurisdiction, was not a suit to set aside that order, inasmuch as the order itself was a nullity. But in the present case the order of distribution was made by a. Court fully competent to make it, and was a good order until set aside.
3. Moreover, it is not easy to see how any relief could be granted to the plaintiffs without setting aside that order, and in fact the plaintiffs, virtually ask to have it set aside, because they ask as an alternative prayer in their plaint that, if they are found to be not entitled to the whole of the assets, those assets may be distributed on a principle different from that adopted by the Munsif.
4. We have been referred to two cases decided under Act VIII of 1859--Gogaram v. Kartick Chunder Singh B.L.R. Sup. Vol. 1022 : 9 W.R. 514 and Woomamoyee Burmonya v. Ram Buksh Chetlangee 16 W.R. 11 which decided that a suit brought to obtain a refund of sale proceeds paid away by the Court in contravention of the provisions of Section 270 of that Code must be regarded as a suit to set aside the order of the Court. The fourth Clause of Section 295 of the present Code runs as follows:
If all or any of such assets be paid to a person not entitled to receive the same, any person so entitled may sue such persons to compel him to refund the assets.
5. Assuming that such a suit may be brought by one of the parties to the distribution as effected by the order of Court, we think it must be regarded as a suit brought by him to set aside that order, and therefore it must be brought within one year from the date of the order. The present suit not having been instituted within that period, we are of opinion that it is barred by limitation under Article 13, Schedule II, of the Limitation Act.
6. On the other point we are clearly of opinion that the suit should not have been thrown out for misjoinder of parties. In the case of Brojo Nath Chuckerbutty v. Baney Madhub Dischit 23 W.R. 434 it was held that, in a suit brought to set aside an order under Section 270 of Act VIII of 1859, all the parties to the distribution ought to be made parties to the suit. We find that a similar view was expressed in a recent decision by a Divisional Bench of this Court in Appeal from Original Decree 291 of 1884, decided on 8th September 1885, in respect of suits under Section 295 of the present Code. In this case, it was absolutely necessary that the Court should have before it all the parties to the distribution if it was to decide whether that distribution had been effected upon a proper principle.
7. Moreover, under Sections 28, 31 and 45 of the Code, it would seem that the suit should not have been dismissed on this ground. As we have held, however, that the suit is barred by limitation, the appeal is dismissed with costs.