1. In this case the defendant, a lady of the name of Kiron Soshi Dasi, appeals from a decision of my learned brother Buckland, J., in a suit brought against her by the Official Assignee of Calcutta for possession of premises No. 10, Sonagachi Lane, in the town of Calcutta together with mesne profits. On 25th February 1896, it appears that a woman of the name of Bhuban Mohini Dasi executed a deed of gift of the property in suit in favour of two persons, Gora Chand Dhur and Gour Mohan Dhur, sons of one Kunja Behari Dhur and these persons on 14th March 1912 granted a mortgage of that property in favour of one Maharaj Kishore Khanna. In July 1914, Khanna instituted a mortgage suit against Gora Chand and Gour Mohan which resulted in a final decree being passed in 1916 and a sale of the property in execution of the decree took place on 10th August 1918. On the day of this sale, Bhuban Mohini not only protested to the Registrar that the property still remained in her and that the deed of gift under which the mortgagors claimed was null and void but she commenced a suit for declaration of her title, for a declaration that the deed of gift was not binding on her and for other reliefs against the mortgagee. She died afterwards and the present defendant Kiron Soshi Dasi was substituted in that suit in Bhuban Mohini's place and stead. While that suit was proceeding, the mortgagee Khanna in his own mortgage suit obtained a sale certificate on 12th March 1919. On 13th March 1923, the suit of Bhuban Mohini which had become the suit of the present appellant Kiron Soshi was dismissed by Page, J. Thereupon, on 25th April 1923, Khanna the mortgagee, in his own suit applied for an order against the present appellant or any other person to vacate and make over vacant possession of the mortgaged premises No. 10, Sonagachi Lane, on the allegation that a certificate of sale had been granted to him but that the premises were in the occupation of the said Kiron Soshi Dasi who refused to give up possession in spite of repeated demands.
2. In that application, Kiron Soshi Dasi produced evidence of various tenants of the property who deposed to the fact that she and Bhuban Mohini had been in possession for many years. She did not dispute that she was in possession of the property or contend for a single moment that she was minded to give it up. That application was in the end dismissed by an order made by Greaves, J. Thereafter it is not necessary to detail the events except to say that the present suit was brought by the Official Assignee because Khanna the mortgagee was adjudicated an insolvent on 25th September 1929.
3. The plaint in the suit which is before us was filed on 9th August 1930. At the hearing of the suit, it was not disputed that Bhuban Mohini and the defendant after her had been in adverse possession of this property even since the date of the deed of gift which Bhuban Mohini had executed to Khanna's mortgagors. At the settlement of the issues, a plea of limitation was taken and a plea of adverse possession and Mr. S.M. Bose on behalf of the plaintiff gave an express admission that the possession had been adverse possession from 1896 onwards. In these circumstances, the defendant who was concluded by the judgment of Page, J., from denying that title was in the Official Assignee on the footing that the deed of gift was valid and that the mortgage to Khanna was a good mortgage contended, first, that the suit was barred by limitation because it was not brought within one year of the order made by Greaves, J., in 1923 dismissing the application for possession. She also contended that her title by adverse possession was a complete defence to the suit. On this point the plaintiff said that Page, J.'s judgment made it impossible for her in this suit to set up Article 142 or Art. 144, Limitation Act, as a defence.
4. Now, the first question is a question on the merits, that is to say, whether or not this adverse possession admitted since 1896 leaves the defendant without any answer to the Official Assignee. In my opinion, it affords a complete defence. The contention on behalf of the plaintiff which the learned Judge has acceded to is as follows: The suit before Page, J., had been brought in August 1918. The lady had in her plaint set up that the deed of gift was obtained by undue influence and had never been acted on or given effect to and that Khanna, the mortgagee had notice of all these facts. Page, J., was not convinced that there was anything defective in the deed of gift. He thought it valid and operative. Thereupon learned Counsel for the plaintiff in that case ordered Page, J., to allow him to amend the plaint and plead an alternative case to the effect that, even if the deed of gift was valid and effective, the grantor, contrary to the deed of gift, had been in possession ever since, that that was adverse possession for more than 12 years and that the title of the grantee under the deed of gift had thus become extinguished under Section 28, Limitation Act. The learned Judge finding that this case had not been pleaded for one reason or another refused to allow the amendment. He therefore dismissed the suit for declaration as to the deed of gift and for an injunction restraining the mortgagee from proceeding against the mortgaged subject. The learned Judge in the present case has discussed the question whether, although adverse possession was not a subject-matter of decision before Page, J., the question of the lady's adverse possession for 12 years prior to August 1918 is a matter within the explanation to Section 11 of the Code-a matter which might and ought to have been raised in the same suit and he has come to the conclusion that it is such a matter. I am not in the least disposed to disagree with that opinion. I think it was for the lady to put forward a case in her plaint not only on title, but any case which she had to enable her in August 1918 to get relief against the mortgagee on the footing of adverse possession. If that question had been raised it would only have been relevant to see whether or not she had made out that for 12 years prior to 10th August 1918 she had been in adverse possession. It must be taken therefore that before 10th August 1918 she had not been for 12 years in adverse possession, that is to say, she is not now able to say that the title of the Official Assignee was gone on 10th August 1918 by reason of 12 years adverse possession.
5. It has been pointed out by the learned Advocate-General that the judgment of Page, J., cannot be taken to mean that her possession thereafter ceased to be adverse. Her possession thereafter became all the more acutely adverse by reason of Page, J.'s judgment. Then the question is: Does: Page, J.'s judgment necessarily mean more than this: that she cannot be taken to have had in August 1918 adverse possession for 12 years. I am of opinion that it means no more than that. Had she been in adverse possession for two years before that judgment, she would have had no case whatever and, if she had raised the case and the case had been negatived, it would not in the least have been necessary to infer that the Court had come to the conclusion that for those two years she had not been in adverse possession. In my judgment, notwithstanding the judgment of Page, J., it is quite open to the lady, in the circumstances of the present case, to say that for 12 years before the date of the present plaint she was in adverse possession of the property. That is a complete answer to the suit and, on that ground alone, it seems to me that the suit should have been dismissed with costs.
6. The question of limitation which the learned Advocate-General raised in this appeal was to the effect that the plaintiff's suit was bad under Article 11-A, because it was not brought within one year of the order made by Greaves, J., on 25th April 1923, dismissing the mortgagee's application for possession under his sale certificate. The learned Judge has held and I think rightly that those proceedings cannot be said to be proceeding upon an application under Rule 97, Order 21 of the Code and the order cannot be held to be an order under Rule 99.
7. The case of Sobha Ram v. Tursi Ram AIR 1924 All 495, has been pressed in argument before us. In my judgment, the position of the matter under the Code is as follows: If a person has in a suit succeeded in getting a decree for possession of certain property, he is entitled to get an order from the Court for delivering that property to him by way of execution against any person who is bound by the decree. In like manner, if a person is an auction-purchaser of a property in a suit constituted in a certain way, he is entitled to get possession of that property at the hands of the Court by way of execution against persons who are bound by the sale. When in either of such cases the decree-holder or the auction-purchaser desires the assistance of the Court to put him into possession he need not invoke the Court's assistance if he can get possession peaceably without it he has to make up his mind as to the kind of possession he is entitled to claim and whether he is entitled by way of mere execution to get possession against the other party at all; for example, to take the case which is the present case before us-the case of a person who has purchased a property under a mortgage decree, if he cannot for one reason or another get possession, he has to make up his mind whether he will on the strength of his title bring a suit against whoever is in possession or whether he will get a mere summary and equally successful remedy by execution. If he wants execution, he has to make up his mind whether, having regard to the persons whom he desires to remove and having regard to the persons who are likely to object to his getting possession, the case is one within Rule 95 or Rule 96.
8. If it is not, that is to say, if some one is in possession who is under no duty to obey the decree in the particular suit, that is a fact; which he has to take into account before making up his mind to apply for execution at all. That is a fact which points to this that he is unlikely to get an effective remedy merely by executing his decree or the sale certificate In these circumstances, it may very well be that the proper course is not to attempt to recover in execution without bringing an independent suit. It is only if he is prepared to say that the case is one within Rule 95 or Rule 96 that the certificate-holder or decree-holder has any business to approach the Court in that suit for execution and when he does apply, it appears to me that the order he ought to get is an order of the character in form No. 39 in App. E of the Code, not an order directed against any particular person but a general order directing the officer of the Court to put him into possession with a general direction to remove any person who refuses to vacate; else it will be purely a general order of the character specified in Rule 96. Having in that way invoked the assistance of the Court to put him into possession of two things one or the other will happen; either he will get or he will fail to get possession because of the resistance or obstruction of somebody and when that happens it appears to me that it is open to him to apply under Rule 97. In that case, the Court will investigate the question of the character of the possession or the claim of right of the party objecting to the execution and will make an order under Rule 98 or Rule 99 the consequence of which will be that the order will be final subject always to the bringing of a suit such as is contemplated by Rule 103, Order 21.
9. In the Allahabad case already cited, it appears to have been assumed that without any order for execution under Rule 95, or Rule 96 the decree-holder or the certificate-holder who goes on the law by himself and demands possession and does not get it can come straightaway to the Court under Rule 97, Order 21 and that has given rise to the further question whether knowing that the person in possession is not minded to give it up it is necessary for him to go physically and be really obstructed or resisted or whether it is enough in such a case merely to show that the person was objecting to his possession. I am not prepared to accept the authority in the Allahabad case in so far as it appears to hold that Rule 97 has any application in the absence of an attempt on the part of the Court in execution to give delivery to the decree-holder or the auction-purchaser. The words which appear as the rubric of the particular rules of which Rule 97 is the first one 'resistance to delivery of possession to decree-holder or purchaser' and the form provided in App. E is plain to the effect that resistance is resistance to the carrying out of the execution by the office of the Court. Form No. 40 is headed 'summons to appear and answer charge of obstructing execution of decree' and it proceeds:
Whereas the decree-holder in the above suit has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession, you are hereby etc.
10. The language of the rule is:
Where the holder of a decree for possession of the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property.
11. That language does not, it seems to me, indicate that because an amicable delivering up of the property to the decree-holder or the certificate holder is refused, the matter is to come summarily before the Court, there being no previous execution directed for the purpose of giving possession [of Rule 98]. The great difficulty in my judgment is this: Both the Court and the parties are apt to suppose that in order to get a warrant under Rule 95 the question of the character of the possession of the person likely to be obstruct ought to be raised and decided. I am more particular in saying that is not the intention of Rule 95 because one of the Judges in the Allahabad case already mentioned seems to have taken that view and I see that in 1919 in the present case an order was made by me sitting on the original side purporting to be under Rule 95 and purporting to direct Kiron Soshi to vacate. That order was afterwards set aside. But it appears to me that the correct way of working these rules is this: First of all, to find out whether the applicant claims to be within Rule 95 or Rule 96. If he does not, dismiss his application then and there and leave him to bring a separate suit.
12. If on any reasonable right he claims to be under Rule 95 or Rule 96, let him have a general warrant mentioning nothing about any particular person who is likely to give trouble; wait and see what particular person does give trouble when the officer of the Court comes to put the applicant into possession; and according to the claim of the person who there gives trouble, an application may successfully be made under Rule 97. In my judgment, it would be unsafe for this Court to follow the exposition given by any of the Judges, in the case cited from I.L.R. 46 Allahabad AIR 1924 All 495. The question in this suit is whether an application having been made to Greaves, J., on 12th April 1923 by Khanna saying that inspite of repeated demands Kiron Soshi was unwilling to give him possession, the dismissal of that application meant that Khanna had one year only within which to bring his suit. In my judgment, that is not so. Khanna's application was not an application within Rule 97; the order was not an order within Rule 99 and this suit is not within Rule 103 there having been no execution proceeding or no order made by the Court at any time directing that Khanna should be put into possession of the property on the strength of the sale certificate. The application may have been dismissed for this very reason,
13. One way to test the matter would be to take the case of a decree-holder who falls within Order 21, Rule 22. He cannot get execution-Whether under Rule 35 or otherwise without giving notice under Rule 22. Can he then go informally and without even a warrant or a copy of the decree to demand possession and on refusal bring an application under Rule 97 against anyone he finds in possession? I think not; on this point therefore the appeal fails, but as the appellant succeeds on the first point, the result is that the appeal must be allowed with costs and the suit dismissed with costs.
14. I agree.