Reuben, J.:— This appeal by the plaintiff is directed against a decision of the Additional Subordinate Judge of Hazaribagh, reversing a decision of the Munsif of Hazaribagh. It arises out of a suit for the declaration of title to and recovery of possession of a house, being holding no. 933 in the Municipality of Hazaribagh.

This house formerly belonged to one Hazari Barai. Hazari had two sons Shibcharan and Chedi. Shibcharan died leaving two sons Shyamlal and Lalji. Chedi died leaving a widow Tejni and a daughter Anandi. Mossammat Tejni is now dead. The plaintiff claims the house by purchase in execution of a decree obtained by him against Shyamlal and Lalji on the foot of a handnote. According to him, Chedi died joint with his brother Shibcharan, and the house finally came by survivorship to Shyamlal and Lalji. His purchase was in the year 1940. In the course of the execution of the money decree, a claim under Order XXI, rule 58, was filed by Musammat Rajeshwari (defendant 4), which was decided in her favour. The plaintiff, however, succeeded on the 22nd December 1941 in getting a decision in his favour in Title Suit 271 of 1940 brought by him under Order XXI, rule 63, of the Code of Civil Procedure. Having succeeded in this suit, he asked the court for delivery of possession in pursuance of his purchase in the money execution. Delivery of possession was resisted by Anandi (defendant 1), claiming a half share in the house on the contention that her father Chedi separated from his brother Shibcharan and that she had inherited his half share of the house. The plaintiff, thereupon, instituted a case under Order XXI, rule 97 of the Code. On the very first date fixed in the case, however, there was no appearance on his behalf and the case was dismissed on the 10th April, 1943. The present suit was filed by him on the 2nd May, 1944, more than a year after the dismissal of his objection under Order XXI, rule 97.

Mossammat Anandi contested the suit setting up the same story as before. Both the courts below have agreed in rejecting her story. They have held that Chedi died joint with his brother and that the house passed by survivorship to Shyamlal and Lalji with the consequent result that Mossammat Anandi has no legal interest in it. The suit was decreed by the Munsif. His decree has been reversed and the suit dismissed by the Subordinate Judge on the ground that the limitation for the films of the suit is governed by Article 11-A of the First Schedule to the Indian Limitation Act of 1908. Hence, the present appeal. In the opinion of the Munsif, Article 11-A had no application to this suit, because the final order passed in the proceeding under Order XXI, rule 97, was without any investigation having been made by the court. The Subordinate Judge, on the contrary, held that the decision of a Division Bench of this Court in Saiyid Raziuddin Hussain v. Bindesri Prasad Singh is an authority that an investigation is not necessary for the applicability of this Article.

Only two points arise in the present appeal: firstly, whether investigation is necessary for the applicability of Article 11-A and, secondly, whether, in this particular case there was investigation. I shall deal first with the second point which is readily disposed of.

Admittedly, the application under Order XXI, rule 97, was dismissed in the absence of the plaintiff on his failure to appear when the case was called out. But Mr. Ghosh, for the respondents, cites Sardhari Lal v. Ambica Pershad as an authority that the Civil Procedure Code does not prescribe for the purpose of these summary proceedings such a full investigation as in a suit. The case is an authority for the proposition that the Civil Procedure Code does not prescribe the form or the extent of the investigation that should be made in summary proceedings of this kind, and that, when the question arises as to whether an investigation was made or not it should be decided on the facts of the particular case. The proceeding which their Lordships had to consider was evidently not one in which it could be said that there had been no investigation. The Subordinate Judge had actually given effect to the objection and had directed that “the objected property should be released on the ground of its being ancestral property, and that only the right of partition of the judgment debtor be sold.” It was clearly a decision on the merits. As their Lordships suggested this decision may have proceeded upon an agreement between the parties as to the facts. That is to say, the court had before it the admission of the parties concerned as an evidence on which it could act.

Before I refer to the other case cited by Mr. Ghosh, it will be convenient to set out the relevant-orders-in the proceedings under Order XXI, rule 97:—

“12-3-43—Register the application as Miscellaneous case. Issue notice to the Opposite Parties fixing 10th April, 1943, for disposal……..

10-4-43—Notices on Opposite Party nos. 2 to 7 served personally. Notice of Opposite Party no. 1 served by affixing on refusal and of Opposite Party 8 also served by affixing on refusal of his father who lives jointly. Opposite Parties appear through pleaders and file tardies. Appl. does not take any steps.

None responds or appears to repented calls for the applicant. Opposite Party nos. 1 and 2 are present. The Miscellaneous case is therefore dismissed for default with costs to the Opposite Party. Pleaders fee Rs. 8.”

These orders show that the case was disposed of by the executing court on the very first date fixed for the appearance of the opposite party. Let us turn now to the cases on which Mr. Ghosh relies.

In Lachmi Narain v. H.C Martiandell the parties appeared on the 18th of November, and the objector stated that he had not had sufficient time to produce certain evidence which he wished to produce. He asked for an adjournment, and the case was adjourned until the 28th of November, with the warning that if he did not then produce his evidence, his claim would be dismissed. He did not appear on the 28th. The court waited till the 29th, and again till the 30th, and then on the 30th, as he did not appear, his claim was rejected for want of prosecution. Their Lordships, in holding that the case must be treated as one in which there had been an investigation, pointed out that the onus of proof lay on the objector, that he had been given a full opportunity of substantiating his right, and that he had failed to do so. In Rahim Bux v. Abdul Kader, the objector was present in court on the day of hearing and asked for time. The court refused to grant him time and “the case thereupon went as if the claimant had failed to adduce any evidence.” The order passed by the court rejecting the claim was:—

“The claimant has adduced no evidence, and this is due entirely to latches on the part of the claimant. He presented, his petition very late, and it would not have been registered, had not the petitioner's pleader undertaken to produce evidence today at all hazards. It appears, however, that the petition was filed on the 25th, but boat hire was not deposited till six days after that is on the 31st. Hence summons to witnesses could not be served in time. Claim rejected with costs.”

It was clearly a case in which the court was dismissing the objection on account of the failure of the claimant, in spite of opportunity given; to produce evidence in support of his claim and not merely a dismissal for default. As has been pointed out in Sm. Nirode Barani Dasi v. Manindra Narayan Chandra, there is a real distinction between “a case where it is dismissed for default, and a case where the party appears and fails to adduce evidence and the case in consequence dismissed in which event the dismissal is not one for default.” In the course of their decision in Rahim Bux's case, their Lordships referred to Kallar Singh v. Toril Mahton and distinguished it on the ground that there was no appearance for the claimant while the decree-holder was present. In the present case, also, the claimant was absent when the objection was dismissed. In Gokul v. Mohri Bibi on the 15th of June, the date fixed for hearing of the objection, an application was made by the objector's pleader praying for an adjournment. The application was rejected and the objection was dismissed by the following order:—

“This is an objection under section 278, Civil Procedure Code. The correctness of it is disputed by the decree holder. The objector has produced, no evidence to make out the truth of his claim, and it is disallowed with costs.”

It is evident from the form of the order adopted by the court that it regarded itself as dismissing the case not merely for the default of the objector but because there was no evidence in support of the claim. It is also clear that at the time when this order was passed there was an appearance on behalf of the objector.

To turn back again to the facts of the present case, the order of dismissal was passed on the very first, date fixed in the case. At the time when the date was fixed, the opposite party had not appeared. There was no certainty that they would appear on the first date and it was not at all certain, rather it was most unlikely, that evidence would be gone into on the first date fixed in the case. When, therefore, the case was summarily dismissed on the 10th of April 1943, how can it be said that the order was one passed after investigation? The Munsif in dismissing the objection makes no reference to the absence of evidence, but expressly dismisses the case “for default.” This shows that he too did not regard the date as a peremptory date for taking evidence. Of the cases cited by Mr. Ghosh, there is only one that is at all comparable with the case before us in that the objector did not appear on the date when the case was dismissed. This is the case of Lachmi Narain. The facts of that case as set out by me above, show that the order dismissing the objection was passed by the court after fixing a peremptory date for the taking of the evidence and after having given, the objector two further opportunities of adducing evidence in the case. For these circumstances, the objector could, not be allowed to assert in a subsequent proceeding that his objection had been rejected without investigation. For these reasons, I find myself unable to regard the present case as one in which, there has been an investigation.

I come now to the first point. Article 11-A of the present Limitation Act is as follows:—

“Article. Description of Suit. Period of Limitation. Time from which period begins to run. 11-A By a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an application by the holder of a decree for possession of immovable property or by the purchaser of such property sold is execution of a decree, complaining of residance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession there of to the decree-holder or purchaser, to establish the right which be claims to the present possession of the property comprised in the order. One year. The date of the order.

In considering its scope, it is necessary also to consider Article 11, the relevant portion of which is as follows:—

Article. Description of suit. Period of Limitation. Time from which period begins to run. “11 By a person against whom any of the following order has been made to establish the right which he claims to the property comprised in the order. (1) Order under the Code of Civil Procedure, 1908, on claim preferred to or an objection made of the attachment of, property attached in execution of a dec. One year. The date of order.”

These two Articles correspond to Article 11 in the Second Schedule to the previous Limitation Act, (Act XV of 1877), which was as follows:—

Article. Description of suit. Period of Limitation. Time from which period begins to run. 11 By a person against whom an order is passed under section 280, 281, 282, or 335 of the Code of Civil Procedure to establish his right to, or to the present possession of, the property comprised in the order. One year. The date of order.”

The references in this Article are to the Code of Civil Procedure of 1882, being Act XIV of 1882. I set out below the relevant portions of this Code, which I shall refer to hence forward as the previous Code.—

“278. If any claim be preferred to, or any objection be made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was party to the suit.…

279. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.

280. If upon the said investigation the Court is satisfied that for the reason stated in the claim or objection, such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him or that, being in the possession of the judgment-debtor at such time it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall pass an order for releasing the property, wholly or to such extent as it thinks fit from attachment.

281. If the Court is satisfied that the property was at that time it was attached, in possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall, disallow the claim.

282. If the Court is satisfied that the property is subject to a mortgage or lien in favour of some person not in possession, and thinks fit to continue the attachment, it may do so, subject to such mortgage or lien.

283. 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, but, subject to the result of such suit, if any, the order shall be conclusive.”

335. If the purchaser of any such property (i.e immovable property sold in execution of a decree) is resisted or obstructed by any person other than the judgment-debtor claiming in good faith a right to the present possession thereof, or if, in delivering possession thereof, any such person is dispossessed, the Court, on the complaint of the purchaser or the person so dispossessed, shall inquire into the matter of the resisdance, obstruction or dispossession, as the case may be, and pass such order thereon as it thinks fit.

The party against whom such order is passed may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be final.”

It is clear from the portions of these sections placed by me in italics that the previous Code contemplated that the orders under sections 280, 281, 282 and 335 should be passed after an investigation. It was, therefore, held in several decisions of the High Courts in India that the Article had no application in cases where the claim was dismissed without investigation. Article 11 of the previous Limitation Act has now been split up into two Articles corresponding to the two different stages of execution at which claims to property may be raised. The present Article 11 relates to objections raised when property is being sought to be attached and sold and Article 11-A to cases in which the property has been sold or there is a decree for possession and the auction-purchaser, or the decree-holder, as the case may be, seeks to obtain delivery of possession through the court. In contrast to the old Article 11, neither of the two present Articles makes a specific reference to the particular provision of the Code under which the decision sought to be challenged must have been passed. We have now to consider what the effect of this alteration is.

So far as the present Article 11 is concerned, there is no doubt at all, and the correct interpretation of this Article has been set out in several decisions of the High Courts in India. It relates to cases arising out of objections filed at the stage of attachment and sale, that is to say, cases that would fall under sections 280, 281 and 282 of the previous Code. The corresponding provisions of the present Code are Order XXI, rules 60, 61 and 62 respectively. These provisions, as enacted in 1908, are substantially the same as the old sections and require an investigation by the court before passing an order allowing or disallowing the claim. There is, however, a substantial difference in Order XXI, rule 63, corresponding to section 283 of the previous Code, by which the order passed by a court on such a claim is made conclusive subject to the result of a suit instituted as provided by that rule. Whereas, under section 283 of the previous Code, it was only an order under the specific section 280, 281 or 282 which was made conclusive, Rule 63 is so framed as to make conclusive any final order passed on the objection, whether it falls specifically under rule 60, 61 or 62, or not. The rule provides:

“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, but, subject to the result of such suit, if any, the order shall be conclusive.”

Reading the present Article 11 with Order XXI, rule 63, it is clear that Article 11 will cover the final order in such a proceeding, whether it falls specifically under rule 60, 61, or 62, or not, and whether it was made with or without investigation.

Coming now to Article 11-A and the corresponding provisions in the present Code, we find a difference. The provisions of section 335 of the previous Code are scattered over several provisions of the present Code. I reproduce these below in the form in which they were enacted in 1908:—

97. (1) Where the holder of a decree for the possession of immovable property or the purchaser of my such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day, for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.

99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

100. (1) Where any person other than the judgment-debtor is dispossessed of immoveable property by the holder of a decree for the possession such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

103. Any party not being a judgment-debtor against whom an order is made 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit (if any), the order shall be conclusive.

Again, as the portions placed by me in italics show, there is an insistence on an investigation by the court before orders are passed by the court under these specific provisions. I have indicated that this is also the case with the rules relating to claims made at the stage of attachment and sale. There is a significant difference however, between rules 63 and 103 by which the final orders in claim cases are made conclusive. Whereas rule 63 makes conclusive the final order without any specification of the particular provision under which it is passed, rule 103 confines the conclusive effect of the decision to orders made under rule 98, 99 or 101, that is to say, to orders made after investigation.

Mr. Ghosh has conceded that the suit contemplated by rule 103 is a suit directed against a decision made after investigation. He contends, however, that rule 11-A must be read on its own terms to cover a wider range of suits, not only suits strictly within the provisions of rule 103 but a suit directed against a final order which does not fall specifically within the provisions of rule 98, 99 or 101. It appears to me incorrect to construe Article 11-A separately from the corresponding provision in the Civil Procedure Code. Rule 103 gives a conclusive character to certain summary decisions and provides that they may be challenged by suit, Article 11-A is the provision fixing the period of limitation for the institution of such a suit. In the case of orders which the Code has expressly refrained from making conclusive, there is no reason why the unsuccessful party should be deprived of his right under the general law of suing on his title for recovery of possession.

As another reason against this interpretation, Mr. Ghosh has referred to the observation of their Lordships of the Judicial Committee in Sardhari Lal v. Ambika Pershad (Supra) regarding the policy of the Limitation Act to secure speedy settlement of questions of title raised at the stage of execution. Their Lordships were dealing with a case of an objection at the stage of the attachment and sale of the property, and have carefully confined their remark to this stage:—

“… The policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought.”

This is still the policy of the Act as I have shown in discussing Article 11 and the corresponding provisions of the Civil Procedure Code. Article 11-A deals with a later stage of the execution proceedings. The suitor who has obtained a decree for possession and the auction-purchaser who has purchased property in execution are not bound to obtain delivery of the property by execution proceedings in the court. There is nothing to prevent them from proceeding by way of a suit for declaration of title and recovery of possession. Such a suit would be governed by the ordinary rule as to limitation. Where, however, the party claiming right to possession has put the matter in issue and, investigation has been made by a court, the law insists that a suit challenging the summary decision must be instituted within one year.

On the above grounds, I am of the opinion that Article 11-A has no application where, in the summary proceedings arising out of the claim in the execution case, there has been no investigation. This view has been taken in several reported cases [Sm. Nirode Barani Dasi v. Manindra Narayan Chandra, Ali Mohammad v. Ram Narain, Laxmishankar v. Ranjabhai, Venkatasubha Reddi v. Chundi Linga Reddi]

Mr. Ghosh has finally urged that in view of the decision in Saiyid Raziuddin Hussain v. Bindesri Prasad Singh it is not open to this Bench to take the view which I have indicated, and that, if we differ from that decision, the matter must be referred to a Full Bench. I am unable to agree with this contention, for I do not regard that decision as a decision on the proper construction of Article 11-A. The case before their Lordships arose out of the dismissal of an application under Order XXI, rule 100, of the Code of Civil Procedure; but through some misapprehension, which I am unable to understand, their Lordships construed not Article 11-A but Article 11 of the Schedule to the Limitation Act, and in coming to their conclusion that an investigation is not necessary for the applicability of this Article, relied on Nagendra Lal Choudkuri v. Fani Bhusan Das, Machiraju Venkataratnam v. Sri Raja Vadrevu Ranganayakamma Garu and Gokul v. Mohri Bibi which, Mr. Ghosh concedes, are all cases under Article 11. Their attention not having been drawn to Article 11-A, they did not consider the decisions dealing with that provision, some of which I have mentioned above. Further, from the facts as set out in the judgment of Sultan Ahmed, J. I think that was not really a case of absence of investigation. The summary proceeding was fixed for hearing on the 11th September, 1915. On that date, the claimant appeared, but did not adduce evidence. He asked for time, and this was refused and the court recorded the following order:—

“Applicant again applies for time. It is highly frivolous and is therefore rejected. Applicant takes no step to adduce evidence, other side is ready, ordered that the application is struck off for default with costs and pleader fee Rs. 4.”

Evidently, there had been previous occasions on which the case was fixed for hearing and the claimant had asked for time. On the date in question the applicant was present and once more asked for time. When that time was refused, the applicant adduced no evidence and the other side was ready and present. The case is on a par with Lachmi Narain v. H.C Martindell (supra). The use of the words “for default” makes no difference; what the court really did was that it dismissed the claim because the claimant had failed to adduce evidence in support of it.

On the above grounds, I consider that this suit was not governed by Article 11-A and was rightly decreed by the Munsif. In the circumstances, I would allow the appeal, set aside the decree of the Subordinate Judge and restore the decree of the Munsif. The plaintiff will get his costs throughout.

Narayan, J.:— I agree. The decision of this Court in Saiyid Raziuddin Hussain v. Bindesri Prasad Singh does not trouble me at all. That was a case in which for some reason or other Article 11-A was not considered, at all. The decision is therefore not binding on us, and we respectfully agree with the view taken by the other High Courts in the cases referred to by my learned brother.

K.D

Appeal allowed.