Satyanarayana Raju, J.:— These appeals are from a common judgment of the Court of the District Judge, West Godavari. Appeal Nos. 471/1956 and 302/1957 arise out of O.S No. 44/1950, and Apeal No. 231/1960 arises out of O.S No. 45/1950.

2. O.S No. 44/1950 was originally instituted on October, 1st 1944 in the court of the Special Assistant Agent, Kovvur. After a lapse of about four years, on December 31, 1948, the Special Assistant Agent returned the plaint for presentation to the Agent's Court. Pursuant to this order, the suit was transferred to the Agent's Court on January 17, 1949. Eventually the suit was transferred from the Agent's Court to the Court of the District Judge, West Godavari where it was numbered as O.S No. 44 of 1950. The connected suit was originally filed as O.S No. 2/1948 on the file of the Agency Court, and was subsequently transferred to the District Court, West Godavari where it was numbered as O.S No. 45 of 1930. The two suits were tried together with the consent of the parties. The evidence was recorded in O. S No. 45 of 1950, and it will be convenient to refer to the ranks of the partites therein, and that was indeed the course adopted by the lower Court. The material facts, out of which these appeals have arisen, may be briefly stated. Tirupatirayudu and Gangaraju were brothers. Tirupathirayudu was twice married. Mahalakshmamma was his first wife. She has no issue, male or female. During the life time of Mahalakshmamma, Tirupatirayadu brought to his house his brother's son, Viranna, while he was of a tender age. Thereafter Mahalakshmamma died in or about the year 1905. Tirupatirayudu then married Lachamma, the 1st defendant, immediately after the death of his first wife Mahalakshmamma Tirupatirayudu died in the year 1929. The plaintiff is the only daughter of Tirupatirayudu by his second wife, Lachamma. Viranna executed a will on May 16, 1942, bequeathing all the plaint schedule properties to his wife, Venkatanarasayamma and his daughter, Mahalakshmamma alias Rajamani, defendants 2 and 3 save an aggregate extent of 24 acres situated in the villages of Singanapalli Pydipaka and Veeravarmalanka, which he bequeathed to the plaintiff. The plaintiff instituted the suit on October 1, 1944, for a declaration that the alleged adoption of Viranna by Tirupatirayudu is neither true nor valid in law and that her rights to the properties comprised in the estate of her father are not in any way affected after the life-time of Lachamma, the widow of Tirupatirayudu.

3. The 1st defendant remained exparte.

4. Defendants 2 and 3 resisted the suit on various grounds. They filed a common written statement contending that Tirupatirayudu and his wife, Mahalakshmamma adopted Viranna when he was 6 or 7 years old; that the requisite religious ceremonies, including that of giving and taking, were performed according to the Hindu Sastras; that Viranna became a coparcener with Tirupatirayudu, and on Tirupatirayudu's death, Viranna became entitled to all the family properties by right of survivorship; and that Viranna himself performed all the obsequies of his adoptive mother, Mahalakshamamma.

5. Defendants 4 to 10, who purchased the B Schedule properties from Viranna, were also added as parties.

6. The connected suit, O.S No. 44 of 1950, was filed by Venkatanarasayamma, Rajamani alias Mahalakshmamma and Lachamma, who are defendants 2, 3 and 1 respectively in the other suit, for a declaration of their title to and possession of the plaint schedule property which was attached under section 146 of the Code of Criminal Procedure in M.C No. 2/1941 on the file of the Joint Magistrate, Bhadrachalam. As Karri Lachamma, who was the 3rd plaintiff in the suit, while it was pending on the file of the agency Court, did not co-operate with the other plaintiffs, she was subsequently transferred as the 18th defendant.

7. Briefly stated, the case of plaintiffs 1 and 2 there was that Viranna left a will, dated 16th May, 1942, bequeathing his properties to the plaintiffs and Venkataranam the 17th defendant (the plaintiff in the connected suit); that the plaintiffs and defendants 17 and 18 are interested in the properties mentioned in the plaint schedule and that as defendants 1 to 16 were attempting to disturb their possession and as the properties were in the custody of the court, the plaintiffs were obliged to file the suit for a declaration of their title to and possession of the property.

8. Defendants 6, 8 and 13 died during the pendency of the suit.

9. Defendants 1. 2, 4, 5, 9, 10 and 12 filed a common written statement contending that Karri Viranna was not the adoptive son of Tirupatirayudu and therefore, he was not entitled to the properties. They denied the truth of the will said to have been executed by Viranna. These defendants raised other contentions the importance of which now are that they have been in possession of the lands for more than twelve years to the knowledge of the plaintiffs and their predecessors and that they have acquired title to the suit properties by adverse possession. They further contended that the suit was barred by limitation in as much as it was not filed within three years, from the date of the order passed by the joint Magistrate, Bhadrachalam, in M.C No. 2 of 1941.

10. The learned trial judge found that Karri Viranna had been duly adopted by Tirupatirayudu, that the will executed by Viranna was true and valid, and that the plaintiff in O.S No. 45 of 1950 was not entitled to any of the reliefs claimed by her. That suit was therefore dismissed. In O.S No. 44 of 1950 the court below held that the adoption of Viranna by Tirupatirayudu was true, that he left a will conveying his properties except to the extent of 24 acres in favour of the plaintiff, that the defendants had not acquired title by adverse possession, that the plaintiffs were in possession of the suit properties within twelve years of suit, and finally, that the suit was not barred by limitation for the reason that it was not filed within three years from the date of the order of the Joint Magistrate, Bhadrachalam in M C. No. 2 of 1941. On these findings, the suit was decreed.

11. Against the decree in O.S No. 45 of 1950, the plaintiff preferred Appeal No. 231 of 1960 and Appeal No. 471 of 1956 against the decree in O.S No. 44 of 1950. Defendants 1, 2, 5, 9 and 10 in O.S No. 44 of 1950 have filed Appeal No. 302 of 1957, while Karri Lachamma (1st defendant) has preferred cross-objections in Appeal No. 302 of 1957.

12. The main question which arises for decision in these appeals is whether Karri Viranna was validity adopted by Tirupatirayudu. If the finding of the Lower Court that his adoption was true and valid is to be upheld, it would dispose of Appeal Nos. 471 of 1956, 231 of 1960 and the cross-objections in Appeal No. 302 of 1957.

13. We shall first take up the question of the truth and the validity of the adoption of Karri Viranna.

[After considering the entire evidence their Lordships observed as follows:]

14. We hold, in agreement with the conclusion reached by the Court below, that there is conclusive proof that Viranna was duly adopted by Tirupatirayudu.

15. On this conclusion, Appeal Nos. 471/1956 and 23???/1960 and the memorandum of Cross-objections in Appeal No. 302 of 1957 must be dismissed. Respondents 1 and 2 in Appeal No. 471 of 1956, respondents 2 and 3 in Appeal No. 231 of 1960 and respondents 6 and 7 in the Memorandum of Cross-objections in Appeal No. 302 of 1957, will have their costs.

16. There remains Appeal No. 302 of 1957, which raises a question of limitation. For a proper appreciation of any question arising for decision in this appeal, it is necessary to state the relevant facts. On information furnished by the Station House Officer, Polavaram the Joint Magistrate, Bhadrachalam, in M.C No. 2 of 1941, initiated proceedings under section 145 of the Code of Criminal Procedure against the appellants and some others (therein referred to as the 2nd party) and Karri Viranna (the 1st party). There was a dispute between the first party and the second party with regard to the possession of the present suit lands. After making an enquiry into the dispute, the learned Magistrate passed the following orders:

“I have carefully considered the evidence on both sides and am of the opinion that no purpose will be served by a detailed discussion of it; as far as it is relevant, it consists of a series of averments that one party is in possession of the schedule lands on the one side and on the other side that the other party is in possession. The evidence of the Karnam of Singanapalli is an exception to this and as far as it goes in favour of respondents of the second party but it is vitiated by the fact that he contradicts himself and then lamely adds that he is new to the post, he does not know the fields in his village. He is either committing perjury or is totally unfitted to be Karnam. I see no way of deciding he is in possession on the evidence laid before me with any reasonable degree of certainty of arriving at the correct conclusion.

17. I am of the opinion that if the property is released, from attachment, a breach of the peace is likely to occur. I, therefore, attached the schedule property until a competent court shall have determined the rights of the parties thereto, or the persons entitled to the possession thereof under the provision of section 146(1) Criminal Procedure Code.”

18. O.S No. 1 of 1949 (on the file of the Agency Court), out of which Appeal No. 302 of 1957 arises, was filed by the widow and daughter of Karri Viranna for a declaration of their title to and possession of the plaint schedule property which was attached by the joint Magistrate, Bhadrachalam, in the order set out above. This suit was originally filed before the Special Assistant Agent. Kovvur on 1st October, 1944.

19. The point of limitation arises this way. The suit filed by the plaintiffs was in substance one for avoiding the summary order, dated 15th February, 1941, made by the joint Magistrate, Bhadrachalam, in Ex. B-108. The suit was filed on 1st October, 1954, after the death of Viranna, by his legatees or heirs. The defence raised by the contesting defendants was that the suit was barred by limitation by the combined operation of Section 28 and Article 47 of the Limitation Act, the suit not having been filed within three years from the date of the order of the Joint Magistrate. This contention was negatived by the Lower Court.

20. It is argued before us that Article 47 of the Limitation Act would apply to the facts of the case and that the lower court was in error in rejecting the plea of limitation raised by the appellant. At the outset, it would be convenient to read the material provisions of the Limitation Act.

21. Section 28 reads as follows:

“At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished”.

22. Article 47 is in the following terms.

Description of suits. Period of limitation. Time from which period begins to run. 47. By any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure, 1998, or the Mamlatdar's Courts Act, 1906, or by any one claiming under such person to recover the property comprised in such order. Three years. The date of final order in the case.

23. The general rule is that limitation bars only the remedy and does not extinguish the right itself. Section 28 enacts an exception to this general rule so far as suits for possession of property are concerned and provides that the bar of the remedy shall operate to extinguish the right. Article 47 refers to orders declaring one of the two disputants to be in possession and therefore obliges the other to bring his suit within three years from the date of the order. The object of the suit contemplated by Article 47 to set aside the effect of the summary order of the Magistrate issued in the interests of public peace, with regard to the possession of immovable property under S. 145(6) of the Code of Criminal Procedure. The words ‘an order respecting the possession of immovable property’ occurring in Article 47, have been the subject matter of judicial scrutiny by the High Court of Madras. The earliest of these decisions was rendered, as far back as the year 1877, by a Division Bench of the Madras High Court in Akilandammal v. Peria Sami Pillai . I.L.R I Mad. 309.. There the facts were these. A dispute having arisen between the plaintiff and the defendants as to the ownership of certain landed property, the Magistrate, on being informed of the dispute, held an enquiry under the provisions of chapter XXII, of Act XXV of 1861 (which corresponds to the present S. 146 of the Code of Criminal Procedure.). The Magistrate finding himself unable to determine who was in actual possession of the lands, directed the lands to be put in the possession of the Sub-Magistrate. The learned Judges held that this was not an order respecting ‘the possession of property’ but an attachment proceeding recorded because the Magistrate was unable to determine which party was in possession and that therefore, the limitation of three years prescribed by the 4th clause of Schedule II of Act IX of 1871 (corresponding to Article 47 of the Limitation Act) was inapplicable.

24. In Rajah of Venkatagiri v. Isakapalli Subbiah . I.L.R 26 Mad. 410. the facts were these: Certain lands were attached by a Magistrate, in 1886, under S. 146 of the Code of Criminal Procedure in consequence of disputes relating to their possession. The Magistrate continued in possession of the lands and realised some income from them. Both claimants instituted in 1897, suits in which each claimed the lands as his own, and sought to obtain a declaration of title to them, as well as the accumulated income, and for possession of the lands and recovery of the money. On the question of limitation being raised, it was held by Bensen and Bhashyam Ayyangar JJ. that in so far as the suits were for declaration of title to immovable property and the profits therefrom, they were governed by Article 120 of schedule II to the Limitation Act. The learned Judges further held that the attachment by the Magistrate operated, in law, for purpose of limitation, simply as a detention or custody, pending the decision by a Civil Court, on behalf of the party entitled, and that the seizin of or legal possession was during the attachment, in the true owner. They further held that the right of the true owner to the lands could not be extinguished, however long the attachment might continue.

25. The next of the decisions is Ramaswamy Ayyar v. Muthuswamy Ayyar. There Subrahmania Ayyar and Miller JJ. held that “where property is seized by a Magistrate, the property passes into legal custody and such custody is for the benefit of the rightful owner and that time begins to run against such owner only when by an erroneous order of the Magistrate the property is delivered to some other person and it is so even when such other person had been in wrongful possession previous to the seizure by the Magistrate.

26. In Parasuramayya v. Ramachandrudu Sadasiva Ayyar and Tyabji JJ. explained the scope of Article 47 of the Limitation Act. They held that the Article is applicable to a suit for recovery of possession of lands in respect of which an order had been passed by a Magistrate acting under S. 145 of the Code of Criminal Procedure, although the Magistrate might not have made the proper inquiries which he ought to have made before he passed the order, if the plaintiff had notice of the proceedings though the notice was not served on the plaintiff in accordance with law.

27. It is, however, contended by the learned counsel for the appellants that these decisions are in conflict with the decision of a Division Bench of the Madras High Court, consisting of Seshagiri Aiyar and Bakewell JJ. in Solai Ammal v. Jogi Chetti . 10 Law Weekly 637.. The facts of that case may be briefly summarised. The 1st defendant and defendants 2 and 3 in the suit, out of which the Second Appeal arose, had disputes concerning possession of certain property, whose income was the subject-matter of the litigation. On 30th January, 1908 the Magistrate, who made an enquiry, held that the evidence as to possession on both sides was unsatisfactory and directed that a Receiver should be in charge of the property, under section 146 of the Code of Criminal Procedure. In December 1911, defendants 2 and 3 brought a suit against the 1st defendant, partly for declaration and partly for possession. This suit was eventually withdrawn without obtaining permission to sue again. In March, 1913, after the suit had been so withdrawn, the Receiver delivered possession of the properties to the 1st defendant. The plaintiff obtained a money decree against defendants 2 and 3 and attached the suit property which represented the income which was in the hands of the Receiver and which was handed over by him to the 1st defendant in April 1913. The 1st defendant, who obtained possession from the Receiver, filed a claim petition which was allowed. The plaintiff, thereupon, filed a suit for a declaration that he was entitled to attach the income which was paid by the Receiver to the 1st defendant. On these facts, the learned judges held that as defendants 2 and 3 had no subsisting right on the date of the attachment, there was nothing for the plaintiff to attach and the suit should have been thrown out on this short point. This conclusion was sufficient for the disposal of the appeal. The learned judges, however, considered the point of limitation which was raised before them. They held that the claim of defendants 2 and 3 was extinguished by the combined operation of Article 47 of the Limitation Act and of Section 28. They proceeded to observe that “in Article 47, the suit contem-plated is one for possession by the party against whom an order was passed by the magistrate” It was then stated as follows:—

“It may be that to such a suit it is not necessary that the receiver should be a party. The principle underlying the ‘articles is that as possession is outstanding, the party who is out of it should sue within 3 years to recover it. If he fails to sue within that period, then under section 28 the right to possession is extinguished”.

28. Having said this, the learned Judges referred to Parasuramayya v. Ramachandrudu and Rajah of Venkatagiri v. Isakaplli Subbiah which we already have noticed. If the learned judges were following the principle laid down in the two decisions referred to by them, which indeed they purported to do, it cannot be contended that their decision is in conflict with the earlier decision.

29. In a later Bench decision of the Madras High Court, Alagarswamy Thevan v. Ramabadra Naidu. Srinivasa Ayyangar and Reilly JJ. considered the scope of the decision in Solai Ammal v. Jogi Chetti . 10 L.W 637.. They observed as follows:

“It does not appear to have been argued in that case that if the property were in the hands of the receiver and the receiver was in possession of it no suit to recover the property or possession of property was liable to be instituted or could be instituted against him by some party who is not in possession of the property. The learned judges conceded that the receiver was not a necessary party and if the receiver was the person in possession it is difficult to understand how a suit for possession could be instituted against any order. It seems to have been assumed rather than decided as the result of any consideration or argument that the nature of the suit to be instituted by the plaintiff in such a case would necessarily be only a suit for the recovery of possession of the property. In any case the learned judge seems to have proceeded on the footing that the suit contemplated is one for possession by a party against whom an order was passed by the Magistrate because the suit before them was for possession of the property. But as it is clear that it is not in any case necessary that a suit in the circumstances should always be a suit for the recovery of possession of property it follows that it is not in every case in which an order of the magistrate is passed that a suit for recovery should be instituted.”

30. In any view, the decision in Solai Ammal v. Jogi Chetty is not in consonance with the long line of authority, both of the Madras High Court and the other High Courts.

31. As rightly observed by Srinivasa Ayyangar and Reilly JJ. in Alagarswami Thevan v. Ramabadra Naidu where a Magistrate appoints a receiver to take possession of immovable property, what happens in the eyes of the law is that the property is placed in cust dia legis, for the benefit of the person who may eventually and finally succeed in establishing his title to the property; and it is not necessary for the person affected by the order to institute a suit for the recovery of possession of the property, and he might institute a suit merely to have his right to the property declared. If so, Art. 47 would not apply and a fortiori the consequence of the operation of S. 28 of the Limitation Act cannot follow.

32. Apart from these decisions of the Madras High Court, their Lordships of the Privy Council held in Jagatjit Singh v. Partab Bahadur Singh that where a person sues for a declaration of his title to the land in possession of the receiver in proceedings under S. 145 Code of Criminal Procedure, Art. 47 of the Limitation Act does not apply, where there has been no order for possession by the Magistrate under S. 145. Cr. P. C, and as the suit is one for a declaration of title, Arts. 142 and 144 also do not apply, and that the suit is governed by Art. 120 of the Limitation Act.

33. We may, with advantage, consider at this juncture, the essential distinction between an order passed under Section 145(6) and one passed under S. 146 of the Code of Criminal Procedure. S. 146(6), before its amendment in 1955 (The present suit was instituted before the date of the amendment) read as follows:—

“If the Magistrate decides that one of the parties was or should under the first proviso to sub-section (4) be treated as being in such possession of the said object, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed”.

34. Section 146 of the Code, before the amendment, was in the following terms.

“(1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attach it until a competent court has determined the right of the parties thereto or the person entitled to possession thereof:

Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of disputes has been appointed by any Civil Court, appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure.

Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any civil court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged.”

35. An order made by the Magistrate in proceedings under Section. 145 Cr. P.C is a final order. Under Section. 145(6) he confirms and maintains the possession of one of the parties. To apply Art. 47, the Magistrate must, under Section. 143(6), Cr. P.C, make an order confirming and maintaining the possession of either of the parties. Where, therefore, the Magistrate declares one of the disputants to be in possession, there is a necessary obligation on the part the person against whom there is an adverse order, to bring his suit within three years from the date of the order, and the object of the suit under Art 47 is virtually to set aside the effect of the summary order of the Magistrate, which is final. An order under Section, 146, Cr. P.C is not invested with any such finality. Under that provision, as it stood before the amendment of 1955, if the Magistrate is unable to decide as to which of the disputants was then in possession of the subject of dispute, or if he decides that one of the parties was then in such possession, it is open to him to attach the property until a competent court has determined the rights of the parties thereto, or the person entitled to possession thereof. It is open to the Magistrate when he attached the subject of dispute to appoint a receiver. The provisos to sub-section (1) and (2) of Section 146 are important. Under the Proviso to sub-section (1) it is open to the Magistrate to withdraw the attachment at many time if he is satisfied that there is no longer any likelihood of a breach of the peace. Under the proviso to sub-section (2) in the event of a receiver of the property being subsequently appointed by any Civil Court the Magistrate is bound to deliver possession to the Receiver appointed by the Court. The above two provisos elucidate the nature and character of the order passed by the Magistrate under Section 146. From the language of these provisos it is plain that the order under Section 146 has none of the attributes of finality. When the subject of dispute is attached or placed in the custody of a receiver, he is custodia legis and his possession enures to the benefit of the party who is ultimately successful. This follows from the language of Section 146 which says that the Magistrate is entitled to attach the subject of dispute until a competent Court has determined the right of the parties thereto.

36. Article 47 has no application where there is merely an attachment of the property under section 146 of the Code of Criminal Procedure. When property is attached under Section 146 Cr. P.C the right and title of the true owner cannot be extinguished under Section 28 of the Limitation Act, however long the attachment may continue as the legal possession during the continuance of the attachment is in the person having title on the date of the attachment.

37. We, therefore, hold that Art. 47 of the Limitation Act has no application to the present suit and that the conclusion reached by the lower Court that the suit was not barred by limitation, is correct and must be affirmed.

38. The learned counsel for the appellant has raised certain subsidiary points. In the first place, it is contended by him that the appellants, who are koyas and are members of a hill Tribe, had been defrauded and that they did not really execute the sale deeds in favour of Thirupatirayudu.

39. The cases of the appellants that their thumb-impressions had been taken on blank pieces of paper and they must have been pressed into service for the purpose of the execution of the sale deeds, does not sound credible, for the simple reason that these sale deeds are registered documents. It was pointed out by the trial Court that the present appellants, who had pleaded that they had acquired title by adverse possession, had not been able to substantiate their plea.

40. On these conclusions, which, in our opinion, are correct this appeal must fail and is accordingly dismissed with costs of respondents 1 and 2.

41. Appeal dismissed.