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Case Number

Letters Patent Appeal no. 13 of 1950, from a decision of the Hon'ble Mr. Justice, J.G Shearer, one of the Judges of the Patna High Court

Attorney(S)

Baidyanath Prasad no. 1, for the appellants.
S.P Srivastava, for the respondents.

Judges

Lakshmikanta Jha, C.J
Reuben, J.

Acts

order.Sections 280, 281 and 282 of the Civil Procedure Code of 1877 correspond to rules 60, 61 and 62
section 283 of the Code of 1877 and Order XXI, rule 63 of the present Code. Under section 283,
section 283 of the Code of 1877 and Order XXI, rule 63 of the present Code
Article 11 of the Limitation Act of 1877 and the present Limitation Act
Order XXI, rule 63 and Article 11 of the Schedule to the Limitation Act.
Article 11A of the Schedule to the Limitation Act. Sections 280
sections 280, 281, 282, or 335 of the Code of Civil Procedure,
Article 11 of the Schedule to the Indian Limitation Act,
Order XXI, rule 63 and Article 11 of the Limitation Act.
Sub-section (1) of section 170 of the Bihar Tenancy Act
Article 11 of the Schedule to the Limitation Act
Order XXI, rule 58 of the Code of Civil Procedure
section 278 of the Code of Civil Procedure
Article 11 of the Limitation Act, observed:
Article 11 of the Limitation Act of 1877
Order XXI, rule 63 of the present Code
section 170 of the Bengal Tenancy Act
section 170 of the Bihar Tenancy Act.
section 26B of the Bihar Tenancy Act
Article 11 of the Limitation Act;
rule 58 of Order XXI.
Order XXI, rule 58
Order XXI, rule 63

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Smart Summary

Judgment Summary — Reuben, J. (with Lakshmikanta Jha, C.J. concurring)

Factual and Procedural Background

This appeal concerns limitation arising from a suit for declaration of title to and confirmation of possession (alternatively for recovery of possession) of a 2 bighas 5 kathas 8 dhurs holding in village Bharathi (tanzi no. 6424). In 1921 the plaintiffs (two brothers) purchased the holding from the original tenants by a registered sale deed; under section 26B of the Bihar Tenancy Act that sale bound the landlord-proprietor. In 1941 the landlord-proprietor sued the original tenants for arrears of rent and obtained a decree; plaintiff no. 1 was impleaded in that rent suit. The decree was executed, the landlord bought the holding at auction sale on 14 June 1944, took delivery of possession on 7 May 1945 and settled it with the defendants first party.

In subsequent proceedings the Munsif held that plaintiff no. 2 (who had not been a party to the rent decree) was not bound by it and decreed the plaintiffs' suit to the extent of plaintiff no. 2's eight annas' share. On appeal the Subordinate Judge, Darbhanga, reversed the Munsif and dismissed the suit on the ground that it was barred by Article 11 of the Schedule to the Indian Limitation Act, because it was instituted more than one year after an order passed in the execution proceedings rejecting an objection under Order XXI, rule 58 of the Code of Civil Procedure filed by the two plaintiffs. Shearer, J. upheld that decision, feeling himself bound by a prior Division Bench decision in Subedar Singh v. Ramprit Pande. The present appeal challenges that conclusion on limitation.

Legal Issues Presented

Whether an order of the executing Court rejecting an objection under Order XXI, rule 58 on the ground that the objection is not maintainable by reason of section 170 of the Bihar Tenancy Act operates as an order "against" the claimant within the meaning of Order XXI, rule 63 and Article 11 of the Schedule to the Limitation Act, thereby reducing the period of limitation for a subsequent suit to one year starting from the date of that order.
Whether the executing Court correctly refused to entertain the objection under Order XXI, rule 58 in view of sub-section (1) of section 170 of the Bihar Tenancy Act which excludes rules 58 to 63 and rule 89 of Order XXI from applying to a tenure or holding attached in execution of a decree for arrears of rent.
How prior authorities (including the Full Bench decisions and Division Bench decisions cited) govern the scope of Article 11 and the characterization of an order as being "against" a claimant for limitation purposes.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Amrita Lal Bose v. Nemai Chand Mukhopadhya (Full Bench)	Interpreted section 170 of the Bengal Tenancy Act and whether it bars claims under section 278 of the CPC to tenures attached in execution; majority held the bar applies in all cases.	Described as the leading case establishing that where section 170 applies an application under Order XXI, rule 58 will not lie; the Court relied on this leading authority to conclude the executing Court rightly refused to entertain the objection.
Rameshwar Singh v. Rajo Chowdhraini	Supports proposition that applications under Order XXI, rule 58 will not lie where section 170 applies.	Cited among a group of authorities establishing the settled position that rule 58 is inapplicable to tenures attached in execution under section 170.
Rameshwar Singh v. Puran Chander Mansah	Supports exclusion of Order XXI, rule 58 where section 170 applies.	Listed with other cases to show settled law that objections under rule 58 are not maintainable in such circumstances.
Dwarka Singh v. Nema Singh	Support for non-maintainability of rule 58 applications where section 170 applies.	Included to demonstrate consistent authority for the executing Court's refusal to entertain the rule 58 objection.
Deonandan Prasad v. Pirthi Narayan	Support for the principle that rule 58 will not lie when section 170 excludes the Order XXI provisions.	Relied on as part of the settled line of cases confirming non-maintainability of rule 58 objections.
Surpat Singh v. Shital Singh	Support for the same proposition concerning section 170 and rule 58.	Used as an additional authority in the list of cases establishing the settled law relied upon by the Court.
Harihar Prasad v. Prasad Mahton	Support for the settled rule that Order XXI, rule 58 will not lie where section 170 applies.	Cited among the authorities showing the executing Court had no jurisdiction to entertain the rule 58 objection.
Machi Raju Venkataratnam v. Sri Raja Vardrevu Ranganakamma Zamindarini Garu (Madras Full Bench)	Held that the change in Article 11 was deliberate to widen its scope; an order refusing to investigate a claim on ground of delay is an order "against" the claimant attracting Article 11.	Relied upon as an example of authority holding that certain dismissals (on the merits, e.g., delay) are orders against the claimant under Article 11; used in comparative analysis of when Article 11 applies.
Lakshmi Ammal v. Kadiresan Chettiar (Madras Division Bench)	Held that an executing Court's dismissal of a claim because it had no jurisdiction (e.g., "Sale stopped. The claim cannot be investigated by this Court. Petition dismissed.") is not an order negativing the claimant's right and therefore not within Order XXI, rule 63 or Article 11.	Used to support the proposition that an order declining to adjudicate for want of jurisdiction is not an order "against" the claimant for the purposes of Article 11; persuasive authority in the reasoning that Article 11 should not apply where no jurisdiction exists to entertain the claim.
Abdul Kadir Sahib v. U.T.M. Somasundaram Chettiar	Held Article 11 does not apply where a claim was dismissed because the execution sale had already been concluded; the District Munsif effectively said "I will not hear you."	Quoted to show that a dismissal on jurisdictional or procedural grounds (not a decision on merits) does not attract Article 11; supported the Court's conclusion that the Munsif's refusal to entertain the rule 58 petition here was not the type of order contemplated by Article 11.
Kenath Puthan Veetil Sivasankara Menon v. Chalakattilnanatuvilepurakkal Kuppan (Madras Division Bench)	Where a claim was mistakenly filed in a Court without jurisdiction and dismissed on withdrawal, that dismissal was not an order within Order XXI, rule 63.	Referenced as further supporting authority that orders declining jurisdiction or dismissing applications for such reasons are not "orders against" claimants under rule 63/Article 11.
Chetanlal v. Lalji	Executing Court summarily rejected claim on ground execution had been transferred; held not to attract Article 11.	Relied upon (Vivian Bose, J.'s observation) to support the view that refusal to entertain an application because it cannot be heard is not an order within Order XXI, rule 63 and hence not within Article 11.
Sasthi Charan Biswas Banik v. Gopal Chandra Saha	Claim under Order XXI, rule 58 was filed before a Court having jurisdiction; later, after sale, the claim was dismissed for default; court held the dismissal was not an order against the claimant because the Munsif had no jurisdiction to entertain such a claim at the time of dismissal.	Used to illustrate that a subsequent dismissal for default cannot be treated as an order under Article 11 if, at the time of dismissal, the Court had no jurisdiction to hear the claim.
Subedar Singh v. Ramprit Pande (Division Bench of this Court)	Held that a suit was barred by Article 11 where an objection under Order XXI, rule 58 (relating to non-maintainability by reason of section 170) was rejected; treated such rejection as an order attracting Article 11.	Considered binding by Shearer, J.; examined and distinguished by Reuben, J. The Court treated Subedar Singh as decided on its facts (where the objection challenged the nature of the decree as a money decree and thus was within jurisdiction) and therefore not inconsistent with the conclusion reached here.
Srikrishna Sahu v. Dhiraj Mahto	Wort, J. referred to Subedar Singh (though in that case the point did not arise); observed that Subedar Singh might be too wide but treated it as authority in some circumstances.	Cited to show judicial uncertainty and disagreement on the scope of Article 11 in such contexts; used in the court's survey of authorities on whether Article 11 applies when an executing Court declines jurisdiction.
Mukhram Pande v. Arjun Missir	Khaja Mohammad Noor and Luby, JJ. held that where a claim under Order XXI, rule 58 was rejected as not entertainable (claimant had no interest on date of attachment) the order did not fall within Order XXI, rule 63.	Relied on as supporting the view that dismissals for non-entertainability do not attract Article 11; Khaja Mohammad Noor, J. distinguished Subedar Singh on its facts.
Maharajsingh v. Rai A.N. Bose	Authority that an objection that the decree under execution was a mere money decree (as opposed to a rent decree) is entertainable by the executing Court.	Referred to when distinguishing Subedar Singh: that case challenged the nature of the decree and so fell within the executing Court's jurisdiction to decide, unlike the present case where the plaintiffs conceded the decree was for rent arrears.

Court's Reasoning and Analysis

The Court's reasoning proceeded in two stages: first, whether the executing Court rightly refused to entertain the objection under Order XXI, rule 58; and second, whether the executing Court's refusal operated to shorten the period of limitation by invoking Article 11.

On the question of jurisdiction/maintainability the Court observed that sub-section (1) of section 170 of the Bihar Tenancy Act expressly provides that rules 58 to 63 and rule 89 of Order XXI shall not apply to a tenure or holding attached in execution of a decree for arrears of rent. It was not disputed that the defendant was the landlord, that rent was in arrear and that the decree was for arrears of rent. On that basis the Court concluded (following the Full Bench in Amrita Lal Bose and other authorities) that an application under Order XXI, rule 58 was not maintainable and that the executing Court therefore rightly refused to entertain the objection.
On the limitation point the Court undertook a close textual and contextual comparison of Article 11 of the present Limitation Act with the corresponding provision in the Limitation Act of 1877 and with section 283 of the old Code and Order XXI, rule 63 of the present Code. The Court noted that Article 11 (present Act) does not enumerate specific Code sections, and therefore on its face would include an order of dismissal under Order XXI, rule 58; but the Court rejected a literal expansion without regard to the nature of the order.
The Court surveyed authorities (Madras Full Bench and several Division Bench and Full Bench decisions) showing two strands of authority: (a) cases in which an executing Court refused to investigate a claim on merits (for example for delay) and such refusal was treated as an order "against" the claimant attracting Article 11 (Machi Raju Venkataratnam), and (b) cases in which the executing Court declined to entertain a claim because it had no jurisdiction or the claim was not maintainable (for example Lakshmi Ammal, Abdul Kadir Sahib, Kenath Puthan Veetil Sivasankara Menon, Chetanlal, Sasthi Charan Biswas), and such declines were held not to be orders "against" the claimant for the purposes of Article 11.
Reuben, J. distinguished the present case from Subedar Singh (a Division Bench of the same High Court which had held to the contrary) on the factual basis that in Subedar Singh the objectors had put forward a challenge to the nature of the decree (asserting it was a money decree and thus within the executing Court's jurisdiction to entertain). In the present case the plaintiffs did not contest that the decree was a rent decree; therefore, their objection under rule 58 was not maintainable and the executing Court merely refused to entertain it. The Court held that where there was no maintainable petition before the executing Court there was, in effect, no order "on" such a petition and hence no order "against" the claimant within the meaning of Order XXI, rule 63 and Article 11. The Court therefore concluded Article 11 did not apply and the ordinary limitation period governed the plaintiffs' suit.

Holding and Implications

APPEAL ALLOWED.

The Court allowed the appeal, set aside the appellate decree, and restored the decree of the Munsif. The direct, operative consequence is that the Munsif's decision (which had partly favoured the plaintiffs by decreeing the eight annas' share of plaintiff no. 2) stands restored. The Court ordered that costs be borne by the parties themselves ("As success is evenly divided between the parties, they will bear their own costs throughout").

Implications: The decision emphasizes that an executing Court's refusal to entertain an objection because the objection is not maintainable under section 170 (i.e., the executing Court had no jurisdiction to entertain the rule 58 petition) does not operate as an order "against" the claimant within Order XXI, rule 63 and Article 11 of the Limitation Act for the purpose of cutting down the limitation period to one year. Where the executing Court entertains and decides the objection on the merits (or where the objection is within its jurisdiction), a refusal on the merits may be an order "against" a claimant attracting Article 11 — but that was not the case here. The opinion does not purport to lay down a novel proposition of law beyond its application to the facts; it rests upon and distinguishes existing authorities.

This summary has been prepared exclusively from the text of the provided opinion. No information beyond the opinion has been added or inferred.

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Manir v. Kameshwar

Reuben, J.:— This appeal by the plaintiffs raises a point of limitation. It arises out of a suit for declaration of title to and confirmation of possession of a holding of 2 bighas 5 kathas 8 dhurs in village Bharathi in tanzi no. 6424, of which the proprietor is the defendant second party, and in the alternative, for recovery of possession thereof. The plaintiffs-appellants are two brothers who, in 1921, purchased the holding from the original tenants, the defendants third party, by a registered sale deed, so that under section 26B of the Bihar Tenancy Act the sale is binding on the landlord proprietor. The landlord proprietor, nevertheless, in the year 1941, sued the original tenants, defendants third party, for arrears of rent in respect of the holding and got decree. In that suit, plaintiff no. 1 was also impleaded as a defendant. The landlord decree-holder then put the decree into execution and purchased the holding at an auction-sale held on the 14th of June 1944. He took delivery of possession over the holding on the 7th of May 1945 and settled it with the defendants first party. The Munsif, holding that plaintiff no. 2 not being a party to the rent decree is not bound by it, decreed the suit to the extent of his eight annas' share of the holding. His decision has been reversed and the suit dismissed in appeal by the Subordinate Judge, Darbhanga, on the ground that the suit was barred under Article 11 of the Schedule to the Indian Limitation Act, inasmuch as it was brought more than one year after an order passed in the rent execution case rejecting an objection under Order XXI, rule 58 of the Code of Civil Procedure filed by the two plaintiffs. This decision has been upheld by Shearer, J., who considered himself bound by the decision of a Division Bench of this Court reported in Subedar Singh v. Ramprit Pande, although he felt doubtful of its correctness.

The objection under Order XXI, rule 58 was rejected by the executing Court on the ground that under section 170 of the Bihar. Tenancy Act it was not maintainable. Sub-section (1) of section 170 of the Bihar Tenancy Act provides that “rules 58 to 63 both inclusive and 89 of Order XXI of the Code of Civil Procedure, 1908, shall not apply to a tenure or holding or portion of holding attached in execution of a decree for arrears due in respect of the tenure or holding”. Here, it is not denied that the defendant second party is the landlord of the holding in suit, nor that the rent of the holding was in arrears. Nor is it denied that the decree obtained by him was a decree for arrears of the rent of the holding. In these circumstances, it is well settled that an application under Order XXI. rule 58 will not lie Amrita Lal Bose v. Nemai Chand Mukhopadhya, Rameshwar Singh v. Rajo Chowdhraini, Rameshwar Singh v. Puran Chander Mansah, Dwarka Singh v. Nema Singh, Deonandan Prasad v. Pirthi Narayan, Surpat Singh v. Shital Singh, and Harihar Prasad v. Prasad Mahton]. The leading case on the subject is the Full Bench decision in Amrita Lal Bose's case, where the question referred to the Full Bench was:

“Whether section 170 of the Bengal Tenancy Act bars a claim under section 278 of the Code of Civil Procedure to a tenure or holding attached in execution of a decree for arrears due thereon, in all cases, or whether the operation is confined to claims to the tenure or holding and does not extend to claims based on the ground that the property claimed does not form part of the tenure or holding attached.”

The majority of the Full Bench decided that it bars such a claim in all cases. The dissenting Judge, Banerjee, J., drew a distinction between the class of cases in which the bar operates and the class in which it does not in words which have often been cited and will bear a fresh repetition:

“Upon a claim under section 278 of the Code of Civil Procedure being preferred, it, therefore, lies upon the party opposing the claim to show that the claim is barred by section 170. He can show that by showing that, upon the claimant's own case, section 170 applies to it, and bars the application of section 278. That will be the case, where the claim is of this nature, namely, that the claimant admits, that the tenure or holding attached is held under the decree-holder, that arrears of rent are, due thereon, and that the decree is in respect of such arrears, but contends that the decree ought not to be allowed to be executed by the attachment and sale of the tenure, because it was obtained against a wrong person, but the claimant was the person entitled to the tenure or holding, and that, unless and until the landlord sues him and obtains a decree against him, the tenure or holding cannot be sold. Where that is the nature of the claim, section 170 will bar the claim upon the claimant's own case. But where the claim is of this nature, namely, that the tenure or holding attached, or rather, I should say the land said to constitute the tenure or holding attached, was not held by the claimant under the decree-holder, but was held by him under an independent right, and that the decree for arrears is, consequently, not a decree for arrears due in respect of such land, there the decree-holder cannot say that, upon the claimant's own showing, section 170 is a bar to the claim being entertained. Nor can it be said that the case is one of ‘a tenure or holding attached in execution of a decree for arrears due thereon’ as the decree sought to be enforced would go to show.”

The case with, which we are concerned clearly falls within the first class regarding which Banerjee, J. agreed that the bar of section 170 will operate. It is not necessary for us to consider here whether the opinion of Banerjee, J., regarding the other class should be preferred to the view expressed by the majority of the Full Bench.

From what I have said, it will appear that the executing Court rightly refused to entertain the objection under Order XXI, rule 58 on the ground that it had no jurisdiction to entertain it. The question is whether such an order operates under Article 11 of the Schedule to the Limitation Act to cut down to one year the ordinary period of limitation for the institution of a suit for declaration of title to and recovery of possession of immovable property.

The relevant portion of Article 11 is as follows:—

“Description of suit:

By a person, against whom any of the following orders 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 a claim preferred to, or an objection made to the attachment of, property attached in execution of a decree.

Period of limitation:

One year.

Time from which period begins to run:

The date of the order.”

The corresponding provision in the Limitation Act of 1877 was as follows.—

“Description of suit:

By a person against whom on order is passed under sections 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.

Period of limitation:

One year.

Time from which period begins to run:

The date of the order.”

Sections 280, 281 and 282 of the Civil Procedure Code of 1877 correspond to rules 60, 61 and 62 respectively of the present Code. We are not concerned here with section 335, provision for which is now made in Article 11A of the Schedule to the Limitation Act. Sections 280 and 281 provide for the release of property from attachment or for disallowing the objection, as the case may be, on an investigation of the objection. Section 282 provides that, if the Court is satisfied that the property is subject to a mortgage or lien in favour of some person not in possession, it may continue the attachment, subject to such mortgage or lien. Another possible order which the court had power to pass on an objection was to dismiss it without investigation if it considered that the objection was designedly or unnecessarily delayed. This was contained in section 278 corresponding to rule 58 of Order XXI. It is noticeable that in Article 11 of the Limitation Act of 1877 the limitation of one year was restricted to cases in which an order was passed under the three specific sections mentioned excluding section 278. In the present Article 11, no specification is made, and the Article would include an order of dismissal under Order XXI, rule 58. It is noticeable further that the difference between Article 11 in 1877 and in the present Limitation Act is identical with the difference between section 283 of the Code of 1877 and Order XXI, rule 63 of the present Code. Under section 283, “an order under section 280, 281 or 282” shall be conclusive, subject to the result of such suit, if any, as may be instituted by the party against whom the order is passed, whereas Order XXI, rule 63 of the present Code provides that, where a claim or 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” and, subject to the result of such suit, if any, the order shall be conclusive.

It was held by a Full Bench of the Madras High Court in Machi Raju Venkataratnam v. Sri Raja Vardrevu Ranganakamma Zamindarini Garu that the change in Article 11 was deliberately made in order to widen its scope in accordance with the general policy of the Legislature to secure the speedy decision of questions of title raised at auction-safes. The Full Bench accordingly held that an order refusing to investigate a claim on the ground that there was a delay in filing it is an order passed against the claimant within the meaning of Order XXI, rule 63 and attracts the operation of Article 11 of the Schedule to the Limitation Act. It does not follow from the change, however, that every order which results in the disposal of a claim without a decision of the claim in favour of the claimant will be an order “against” the claimant within the meaning of Order XXI, rule 63 and Article 11 of the Limitation Act. In Lakshmi Ammal v. Kadiresan Chettiar, for instance, a Division Bench of the Madras High Court dealt with a case in which the executing Court, finding that it, had no jurisdiction to proceed with the execution, dismissed the claim by the order:

“Sale stopped. The claim cannot be investigated by this Court. Petition dismissed.”

Both their Lordships agreed that this was not an order negativing the right set up by the claimant. It was merely an order declining to adjudicate the claim either for or against him. It, therefore, did not attract the operation of Order XXI, rule 63. Similarly, in Abdul Kadir Sahib v. U.T.M Somasundaram Chettiar, it was held that Article 11 does not apply to a case in which a claim was dismissed on the ground that the execution sale had already been concluded. Schwabe, C.J, to whom the case came on a difference of opinion between Spencer and Krishnan, JJ., observed that the District Munsif dismissed the application not on the ground of delay or anything of that kind, but on the ground that it had no jurisdiction to hear it. Rightly or wrongly the District Munsif simply said: “I will not hear you”. In Kenath Puthan Veetil Sivasankara Menon v. Chalakattilnanatuvilepurakkal Kuppan, another Division Bench of the Madras High Court held that, where a party by mistake filed a claim petition in a Court which had no jurisdiction to entertain it and, on his withdrawing the claim, his petition was dismissed, there was no order within the meaning of Order XXI, rule 63. Chetanlal v. Lalji was another such case in which the executing Court summarily rejected the claim on the ground that the execution had already been transferred to another Court. Vivian Bose, J. (as he then was), while holding that the order did not attract the operation of Article 11 of the Limitation Act, observed:

“If an application is rejected on that ground then it cannot have been rejected under Order XXI, rule 63, for there is then a refusal to entertain the application at all, and consequently a refusal to pass an order under that rule.”

According to his Lordship, for Article 11 to apply there must be an order within the meaning of. Order XXI, rule 63, a, view supported by the close, correspondence between section 283 of the Code of 1877 and Order XXI, rule 63 of the present Code on the one hand, and Article 11 of the Limitation Act of 1877 and the present Limitation Act on the other. The case reported in Sasthi Charan Biswas Banik v. Gopal Chandra Saha is interesting because the claim under Order XXI, rule 58 was filed before a Court having jurisdiction to entertain it. Subsequent to the filing of the claim, the property was sold and the claim was dismissed for default sometime later. It was argued before their Lordships that the order of dismissal was an order?, against the claimant within the meaning of Article 11. Their Lordships repelled the argument holding that, at the time when he passed the order, the Munsif had no jurisdiction to entertain such a claim and therefore his order of dismissal for default was without jurisdiction.

In Subedar Singh v. Ramprit Pande the decision, the correctness of which has been doubted by Shearer, J., a Division Bench of this Court held as barred by Article 11 a suit brought more than a year after the rejection of an objection under Order XXI (rule 58 relating to the suit property on the ground that it was not maintainable by reason of, section 170 of the Bihar Tenancy Act. The decision was referred to by Wort, J. in Srikrishna Sahu v. Dhiraj Mahto in a case in which the point did not arise for decision because his Lordship found that the claim under Order XXI, rule 58 had been duly entertained and dismissed on its merits. His Lordship went on to observe that, assuming that the executing Court declined jurisdiction, as was contended before him, the decision in the case of Subedar Singh was an authority that Article 1. I would apply to the subsequent suit. It appears that his Lordship felt that the decision goes too far. I say this because his Lordship then referred to the decision in Abdul Kadir Sahib's case and observed:

“………the mere fact that a person by mistake makes an application in a” matter to which Order XXI, rule 58, clearly does not apply, in no way brings the matter within the mischief of Article 11 of the Limitation Act; in other words if he has a right of action, the mere fact that by mistake he makes the application to which I have referred in no way alters the period of limitation which is rightly applicable to the particular cause of action which is the subject-matter of his action.”

The case of Subedar Singh was noticed again in Mukhram Pande v. Arjun Missir, in which Khaja Mohammad Noor and Luby, JJ. held that, where a claim under Order XXI, rule 58 was rejected as not entertainable on the ground that the claimant had no interest in the property on the date of the attachment, the order did not come within the purview of Order XXI, rule 63. Khaja Mohammad Noor, J., who delivered the leading judgment, distinguished the case of Subedar Singh as having been decided on its own facts, and went on to refer with approval to the decision in Lakshmi Ammal's case.

It would appear from what I have said that these three learned Judges of this Court shared the view expressed in the Madras, Nagpur and Calcutta decisions to which I have, referred. Shearer, J. also, by the doubt which he has expressed regarding the decision in Subedar Singh's case, has shown his inclination to take the same view. I have, therefore, examined the case of Subedar Singh with some care and would say with respect that it is not inconsistent with that view. It is true that in that case, as in the present one, the plaintiffs were purchasers of an interest in an agricultural holding governed by the Bihar Tenancy Act. The nature of the objection under Order XXI, rule 58 filed by them, however, was different. Whereas, in the present case the plaintiffs in their petition under Order XXI, rule 58 did not challenge that the decree under execution was a decree for arrears of the rent of the holding in question, in that case the nature of the decree was challenged and the claim was put forward that the decree was a money decree. Such an objection is entertainable [vide Maharajsingh v. Rai A.N Bose. The point was decided against the objectors and the decision was clearly one within the jurisdiction of the executing Court. Whether the decision was correct was not considered by their Lordships, who observed:

“It may be that the Court took a wrong view and that as a matter of fact the decree under execution was a mere money decree and not a rent decree; but an erroneous order does not affect the jurisdiction of the Court making the order. It only entitles the party to come to the Civil Court to have the error rectified.”

It appears from this that their Lordships acted on the objectors' case that the decree under execution as a money decree. They proceeded on the basis that at the most there was an erroneous decision by the executing Court and that the objectors' remedy was by coming to the Civil Court to have the error rectified. According to this view, the executing Court had the jurisdiction to entertain the objection and to grant the relief asked for. It is possible in such circumstances to regard the order refusing the relief as an order “against” them within the meaning of Order XXI, rule 63 and Article 11 of the Schedule to the Limitation Act. They were entitled to be heard by the Court on the merits of their objection but the Court refused to hear them. Here, on the contrary, it was not the case of the plaintiffs in their objection that the decree under execution was other than a decree for arrears of the rent of the holding. Therefore an objection under Order XXI, rule 58 was not maintainable and the Munsif rightly refused to entertain one. In the words of Schwabe, C.J, he merely said, “I will not hear you”, and there was no order on an objection preferred under Order XXI, rule 58. The petition not being maintainable and not having been entertained, it should be taken that there was no petition before the Munsif and that his order was not an order on such a petition. Further, I doubt whether the order passed by the Munsif can properly be described as being an order “against” the objectors. The Court had no jurisdiction to entertain their petition and merely told them so. For these reasons I think that Article 11 has no application to the present suit and it will be governed by the ordinary rule of limitation.

I would accordingly allow this appeal, set aside the appellate decree and restore the decree of the Munsif. As success is evenly divided between the parties, they will bear their own costs throughout.

Lakshmikanta Jha, C.J:— I agree.

Appeal allowed.

S.H

Manir v. Kameshwar

Judgment Summary — Reuben, J. (with Lakshmikanta Jha, C.J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Manir v. Kameshwar

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