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Nogendra Lal Chowdhury Vs. Fani Bhusan Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal835,44Ind.Cas.265
AppellantNogendra Lal Chowdhury
RespondentFani Bhusan Das
Cases Referred and Ponnusami Pillai v. Samu Ammal
Excerpt:
limitation act (ix of 1908), schedule i, article 11 - civil procedure code (act v of 1908), order xxi, rules 58, 63--claim rejected for default--limitation for title suit. - .....proceedings rejecting the claim was an order within the scope of order xxi, rule, 63, the present suit is a suit of the nature contemplated by that rule and is governed as to limitation by article 11 of the limitation act of 1908. the period of limitation prescribed in such a suit is one year from the date of the adverse order in the claim case. here the suit was instituted more than a year after the claim was rejected. the defend-ant no. 1 pleaded, therefore, that the suit was out of time. the contention put forward on the plaintiff's behalf is that the claim having been rejected for default and without investigation, the order of rejection was not an order within order xxi, rule 63 and article 11 had no application. the contention proved successful in the courts below and the.....
Judgment:

Richardson, J.

1. The only question to which we need address ourselves in this appeal is the question of limitation. In the course of certain execution proceedings the property now in dispute was attached. The present plaintiff preferred a claim to the property under Order XXI, Rule 58, Code of Civil Procedure. The claim was rejected and he brought this suit to establish his title to the property and for consequential reliefs. It is not disputed that if the order made in the execution proceedings rejecting the claim was an order within the scope of Order XXI, rule, 63, the present suit is a suit of the nature contemplated by that rule and is governed as to limitation by Article 11 of the Limitation Act of 1908. The period of limitation prescribed in such a suit is one year from the date of the adverse order in the claim case. Here the suit was instituted more than a year after the claim was rejected. The defend-ant No. 1 pleaded, therefore, that the suit was out of time. The contention put forward on the plaintiff's behalf is that the claim having been rejected for default and without investigation, the order of rejection was not an order within Order XXI, Rule 63 and Article 11 had no application. The contention proved successful in the Courts below and the appeal before us has been preferred by this defendant No. 1. Now it may be useful to cite in this connection the language used by Lord Hobhouse in delivering the judgment of the Privy Council in the case of Sardhari Lal v. Ambika Pershad 15 I.A. 123 : 15 C. 521 : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 : 7 Ind. Dec. (N.S.) 931. Lord Hobhouse said: 'The order' that is, the order in the claim case to which he was referring, 'was made and it was an order within the jurisdiction of the Court that made it. It is not conclusive; a suit may be brought to claim the property, not with-standing the order; but then the law of limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settlement of question of title raised at execution sales and for that reason a year is fixed as the time within which the suit must be brought.'

2. If that was the policy of the law under the Civil Procedure Cede of 1877 and the Limitation Act of the same year, it is still more emphatically the policy of the law under the present Civil Procedure Code and the present Limitation Act.

3. On the plaintiff's behalf reliance has been placed on decisions of this Court under Article 11 of the Limitation Act of 1877 but those decisions are no longer of authority because the language of Article 11 has been altered in the Act of 1903. The change made follows the change made in Section 283 of the Code of 1832 now represented by Rule 63 of Order XXI. Section 283 ran as follows: 'The party against whom an order under Section 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute.' Rule 63 on the other hand says that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in 'dispute. The specific reference to the previous sections or rules has been omitted. A corresponding change has been made in Article 11. The ground, therefore, on which the cases under the previous Limitation Act and the previous Code were decided, that the section specifically referred to in Article 11 and Section 283 of the Code required some investigation to be made, is gone. Rule 63 of the present Civil Procedure Code and Article 11 of the present Limitation Act are quite general in their terms. All that is now necessary is that a claim should be preferred under Rule 58 and that there should be an order either allowing or rejecting it. The party against whom the order is made may then bring a suit in the language of Rule 63 'to establish the right which he claims to the property in dispute' or in the language of Article 11 'to establish the right which he claims to the property comprised in the order', and the suit must be brought within the year allowed by Article 11.

4. The Courts below have plainly erred in applying the old cases to the present law. Even under the Limitation Act of 1877 there was some difference of opinion on the question whether an order rejecting a claim made without investigation came within Article 11 or not. In the case of Jugal Kishore Marwari v. Bejoy Krishna Mukherjee 15 Ind. Cas. 683 : 16 C.W.N. 882 Mookerjee and Beachcroft, JJ., observed in their judgment that though there might be some divergence of judicial opinion there was weighty authority in support of the view that where an application had been dismissed with or without investigation a regular suit, if instituted, must be commenced within one year from the date of such order; and the learned Judges cited reported cases in support of that observation.

5. The case of Umacharan Bhattacharjee v. Hironmoyee Debi 26 Ind. Cas. 943 : 18 C.W.N. 770 was decided in 1918, but the Article applied was Article 11 of the Limitation Act of 1877 and the case is of no assistance to the plaintiff. No doubt the learned Judges there held that Article 11 of the Act of 1877 was not applicable where there had been no investigation of the claim. But at the same time they referred to the change which had been made in the language of Article 11 by the Act of 1908 and remarked that the change might have altered the law.

6. The view we take is supported by the two decisions of the Madras High Court in Narasimha Chetti v. Vijiapala Nainar 27 Ind. Cas 944 : 2 L.W. 206 and Ponnusami Pillai v. Samu Ammal 38 Ind. Cas. 937 : 31 M.L.J. 247 in which the learned Judges pointed out that the language of Article 11 of the Act of 1908 was more comprehensive than the language of the preceding Act and refused to restrict the Article to those oases in which an investigation had taken place.

7. The result is that this appeal must be allowed and the whole suit dismissed with costs, both here and in the Courts below. But the dismissal of the suit will be without prejudice to any right which the plaintiff may have as against the defendant No. 2.

Beachcroft, J.

8. I agree.


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