1. The plaintiff obtained six decrees on hand-notes against defendant No. 1, Ramji Lal Das, and his father, and in execution caused the property in suit an other property to be put to sale, and himself purchased it on April 11th, 1906. Meanwhile, he says, Ramji Lai fabricated three bonds, among them a mortgage-bond purporting to have been executed on February 25th, 1893, in favour of Raghunath Jha, defendant No. 2. The latter obtained an ex parte, decree against Ramji Lal on the basis of this
2. mortgage-bond in Suit No. 26 of 1906 and in execution bought the property now in suit. In February 1907 the plaintiff asked the Court to put him in possession of the property in suit, but resistance was offered by Raghunath Jha. The Munsif disposed of the matter by an order dated February 18th, 1907. The plaintiff instituted the present suit on August 8th, 1910, and the reliefs for which he asked were, so far as this appeal is concerned, for declaration that the mortgage bond of February 25th, 1893, the proceedings in Suit No. 26 of 1906 on that bond and the proceedings in execution of the decree were fraudulent and inoperative against him (the plaintiff) and that he (the plaintiff) is entitled to possession of the land in suit. Defendant No. 2 contested the suit and it is he who has preferred this appeal.
3. On the merits, the Courts below have decided in favour of the plaintiff, and the only contention in appeal is that the suit is barred by limitation. It is said that the Munsif's order of February 18th, 1907, was an order under Section 335, Civil Procedure Code of 1882, and that the suit is barred by Article 11 of the Limitation Act of 1877, because it was not brought within one year of that order.
4. It is obvious that this contention must prevail if the order mentioned was an order under Section 335, Civil Procedure Code.
5. It appears that on February 15th, 1907, the plaintiff as auction-purchaser applied to the Court to be put in possession of the purchased property, and the Munsif's order of the next day was that the nazir should go and give him possession but should return if there was any opposition. On February 18th, the Munsif recorded this order: 'this petition is vehemently objected to. The best course left for the applicant is to bring a suit. Case is dismissed.' In this order, the 'applicant' must be the plaintiff, then auction-purchaser, and the 'petition' and the 'case' are his petition to be put in possession.
6. By Section 335, Civil Procedure Code, it is provided that 'the Court on the complaint of the purchaser shall enquire into the matter of the resistance * * * * * * and pass such order thereon as it thinks fit.' We are asked to presume that the Court made an enquiry, although no record of such an enquiry exists, and that the order dismissing the decree-holder's petition was in consequence such an order as is contemplated by Section 335, Civil Procedure Code. Our attention has been drawn especially to the case of Sardhari Lal v. Ambika Pershad 15 C. 521 (P.C.) : 15 I.A. 123 : 5 Sar. P.C.J. 172 :12 Ind. Jur. 210, where their Lordships of the Privy Council remarked that the Code does not prescribe the extent to which the investigation should go.' That case may be distinguished from the present one, firstly, by the fact that there was an order allowing certain objection to an attachment made by the decree-holder, and secondly, by the fact that the nature of the enquiry made by the Court was not known, and their Lordships assumed that there was some sort of enquiry. These are substantial points of difference, and because of these differences, I do not think that the principle laid down by the Privy Council governs the present case.
7. On the other hand, we have been referred to two Calcutta cases, where the circumstances are very similar to those of the present case. The first is that of Rash Behary Bysack v. Budden Chunder Singh 12 C.L.R. 550. If the Munsif's compressed order of February 18th were expanded, it would be, mutatis mutandis, very much the same as the order recorded by the Munsif in that case, and it was held that there had been no judicial enquiry, as required by the section and consequently no proper order. The second case is much more recent and it refers to the Privy Council judgment; it is the case of Sarat Chandra Bisu v. Tarini Prasad Pal 34 C. 491 : 11 C.W.N 487 where Maclean, C.J., held that if there was no enquiry at all, there was no order within the meaning of Section 335, Civil Procedure Code.
8. In my opinion, it is clear that there was no enquiry at all in the present case on which an order could be based, and that the order passed was not an order under Section 335, Civil Procedure Code. Consequently I hold that the suit was not barred by limitation. The appeal is dismissed with costs.
9. I agree.