Yogeshwar Dayal, J.— This is an appeal by Ameena Bi (plaintiff) against the judgment of the learned Single Judge of the Madras High Court dated July 26, 1976. The respondents are Kuppuswami Naidu (defendant 1) and five others (defendants 2 to 6). The High Court by the impugned judgment took the view that the suit filed by the plaintiff/appellant herein was barred under the provisions of Section 47 of the Code of Civil Procedure and also barred under Article 137 of the Limitation Act.
2. The High Court had reversed the concurrent judgments of the District Munsif, Tindivanam dated November 21, 1970 and the lower appellate court i.e Subordinate Judge, Cuddalore dated October 30, 1972. The trial court and the lower appellate court had decreed the plaintiff's title to the suit properties in dispute and also passed decree for recovery of possession of the same with costs. The plaintiff was also granted a decree for mesne profits, to be computed in accordance with the provisions of Order 20 Rule 12 of the Code of Civil Procedure, for a period of three years prior to the suit. The plaintiff/appellant filed the special leave petition which was granted on August 28, 1978 and hence this appeal is before us.
3. Briefly stated, the allegations in the plaint were that one S.M Sheriff died on November 17, 1947 leaving behind the plaintiff/appellant the only daughter as heir besides his wife, sister and four brothers. The said S.M Sheriff was carrying on a lucrative business and owned considerable amount of immovable properties at various places. It was pleaded that the plaintiff besides her mother, her aunt and uncles are heirs to the estate of S.M Sheriff. The plaintiff pleaded that she was entitled to one half share in the estate of her father and the other half to be shared by other heirs.
4. On November 20, 1947, one of the brothers of late S.M Sheriff, Mohammad Sheriff instituted a suit (C.S No. 544 of 1947) for partition of the properties left behind by his late brother S.M Sheriff on the file of the High Court of Madras. During the pendency of the suit for partition Mohammad Sheriff was appointed as a Receiver of the estate. He leased out two properties belonging to the estate of the deceased in favour of Kuppuswami Naidu, defendant/respondent 1. Mohammad Sheriff, however, continued as Receiver up to 1952 only and thereafter the High Court appointed Shri Alwar J. Naidu, Advocate, as Receiver. Shri Alwar J. Naidu continued as Receiver till the suit for partition was decreed by metes and bounds by judgment and decree dated July 30, 1956. The properties in dispute were allotted to her (plaintiff/appellant herein) and on decreeing of the suit the Receiver was discharged.
5. It appears that in the meanwhile on August 3, 1955 defendant 1, Kuppuswami Naidu, had filed a suit (O.S No. 208 of 1955) in the District Munsif Court, Tindivanam against Mohammad Sheriff, as defendant 2, and Shri Alwar J. Naidu, Advocate, Receiver in the Madras High Court (C.S No. 544 of 1947) as defendant 1. The suit was filed for the refund of the advance given by Kuppuswami Naidu to Mohammad Sheriff for leasing out certain lands at Pela Kuppam as had not been put in possession. It was pleaded in that suit that the amount of Rs 1100 was paid on June 27, 1952 and as stated earlier, Shri Alwar J. Naidu, Receiver in Suit (C.S No. 544 of 1947) was made defendant 1 as the amount had been paid to the ex-Receiver. On September 7, 1955 Shri Alwar J. Naidu, Receiver, filed an application being No. 2715 of 1955 in the partition suit and sought directions in the matter of suit filed by Kuppuswami Naidu for contesting the same. Kuppuswami Naidu also filed an application being No. 1692 of 1955 in the partition suit seeking leave of the court to sue the Receiver. On September 23, 1955 on the application filed by the Receiver Shri Alwar J. Naidu, the High Court directed that the Receiver need not contest the suit as it is the personal liability of Mohammad Sheriff. The decree in O.S No. 208 of 1955 will be effected by debiting the amount of decree to Mohammad Sheriff's account in C.S No. 544 of 1947 filed by him.
6. It also appears that on March 31, 1956 suit filed by Kuppuswami Naidu (O.S No. 208 of 1955) was decreed. Mohammad Sheriff remained ex parte in that suit and Receiver did not contest the same in view of the order of the High Court dated September 23, 1955.
7. In the final decree which was passed in the partition suit on July 30, 1956 no property was allotted to Mohammad Sheriff as his liability to the estate exceeded the value of his share.
8. No certified copy of the decree passed in Kuppuswami Naidu's case was filed on record but Ext. A-7 which is a certified copy of Suit Register, Extract O.S No. 208 of 1955, was filed. The decree that had been passed in the suit filed by Kuppuswami Naidu (O.S No. 208 of 1955) runs as follows:
“Decreed that 2nd defendant personally and defendants from the 2nd defendant's family properties in the hands of Receiver-1st defendant in Madras High Court C.S 544 of 1947 do pay plaintiff Rs 1298 with interest on Rs 1100 at the rate of 6 per cent per annum from 27-6-1955 till payment and do also pay plaintiff Rs 154-0-0 being the cost of the suit.”
9. In the partition suit certain properties were allotted to the Ameena Bi, appellant herein, which were mentioned in Schedule ‘B’ attached to the final decree for partition and Kuppuswami Naidu, while executing his decree against Mohammad Sheriff got the properties, allotted to Ameena Bi attached and sold in execution of money decree obtained by him in his suit and purchased the disputed properties of Ameena Bi while executing his decree against Mohammad Sheriff. It appears that Kuppuswami Naidu without even obtaining the possession of the properties through court, transferred the same to the other defendants in the present suit. It also transpires that no notice of the execution application was given to Ameena Bi nor was the order of attachment dated August 16, 1956 served on her. She was not made a party to the execution application. The properties of Ameena Bi were auctioned on November 28, 1956 without notice to her and sale was also confirmed on January 5, 1957 again without notice to her. It appears that in the meantime respondents had obtained possession, whereupon the plaintiff/appellant served a notice upon the defendants/respondents to deliver back possession and payment of mesne profits and ultimately filed suit (O.S No. 441 of 1968) on or about April 27, 1968 in the District Court, Tindivanam. The plea of the plaintiff/appellant in the suit was that the decree which was obtained by Kuppuswami Naidu merely created a personal liability of Mohammad Sheriff in his favour and he had a further right to recover the money from the estate of Mohammad Sheriff in the hands of the Court Receiver (defendant 1). It was thus the case of the plaintiff/appellant that subsequent attachment and sale are not binding on her. Kuppuswami Naidu, after the sale in execution did not take possession but later trespassed into the suit lands and transferred the disputed properties to other defendants in the present case.
10. The respondents as defendants denied the allegations of the plaintiff/appellant and contended that the decree was binding on the estate of S.M Sheriff deceased. It was also pleaded that the final partition decree of the High Court was not binding on Kuppuswami Naidu or his transferee. It was pleaded that the suit was barred by Section 47 of the Code of Civil Procedure and the Limitation Act.
11. The trial court, however, on a construction of the extract of the decree in the suit register (Ext. A-7) took the view that the decree was only against Mohammad Sheriff and the estate of Mohammad Sheriff in the hands of the Court Receiver. The trial court also took the view that sale of plaintiff's properties in execution of such a decree, without any notice to the plaintiff, was nullity. The trial court also found that the suit was not barred by limitation as the possession of the respondents was for less than 12 years. The findings of the District Munsif were affirmed by the order of the lower appellate court dated October 30, 1972.
12. In second appeal the High Court on construction of the extract of the decree in the suit register (Ext. A-7) took the view that the decree obtained by Kuppuswami Naidu was not only personally against Mohammad Sheriff but was also against the estate of S.M Sheriff, deceased, in the hands of Receiver, defendant 1. In that view of the matter the High Court held that the suit was barred under the provisions of Section 47 of the Code of Civil Procedure and was also governed by the residuary Article 137 of the Limitation Act and was barred by time. As stated earlier, against this order of the High Court, Ameena Bi, has come up in appeal.
13. It was contended by learned counsel for the appellant — (1) that Ameena Bi was not a party in the suit. Even against the advocate, Receiver, appointed by the court representing the estate of her father, S.M Sheriff, no money decree was passed and the High Court erred in construing Ext. A-7 as if the estate of S.M Sheriff was party to the suit filed by Kuppuswami Naidu for refund and mesne profits; and (2) that the suit was not barred by time as it was filed before 12 years of dispossession of the plaintiff.
14. It may be noticed that the concurrent findings of the trial court and the first appellate court were that the decree was personally against Mohammad Sheriff (defendant 2) and against the estate of Mohammad Sheriff in the hands of Receiver/defendant 1. It may also be noticed that in the extract of the decree in the suit register, which has been reproduced earlier, there is no mention of the estate of deceased S.M Sheriff at all. All that is mentioned is regarding the family estate of defendant 2, Mohammad Sheriff, in the hands of defendant 1. The extract also notices the order passed by the Madras High Court on application (No. 1992 of 1955) filed by Kuppuswami Naidu seeking leave of the High Court to sue the Receiver. Neither of the parties filed any copy of the decree obtained by Kuppuswami Naidu in O.S No. 208 of 1955.
15. We have given our anxious considerations to the submissions made on behalf of the appellant and find lot of merit in the same. It is clear from the extract of the decree of the suit register (Ext. A-7) that the decree was personally against the second defendant, Mohammad Sheriff only and also against defendant 1 to the extent of second defendant's family properties in the hands of the Receiver. It is thus clear that no decree had been passed against the estate of deceased S.M Sheriff. The plaintiff/appellant, Ameena Bi, got her rights from her father. She never got any right from Mohammad Sheriff in the partition decree. At the stage when the execution was applied for, the court Receiver had ceased to exist and the final decree had been passed in the partition suit allotting the disputed properties to Ameena Bi. Ameena Bi was never a party to the suit filed by Kuppuswami Naidu. Even the decree which was passed against defendant 1 was to the extent of the family properties of Mohammad Sheriff in the hands of the Receiver and not the properties of the deceased S.M Sheriff in the hands of the Receiver.
16. We are thus of the view that the High Court erred in construing as if the money decree had been passed against the estate of deceased S.M Sheriff. Admittedly Ameena Bi was not a party to the suit. Since Ameena Bi was neither a party to the suit nor any decree was passed against the estate of deceased S.M Sheriff, no question arose of Ameena Bi taking proceedings under Section 47 of the Code of Civil Procedure in the suit filed by Kuppuswami Naidu (O.S No. 208 of 1955). We thus set aside the finding of the High Court on the construction of Ext. A-7, and uphold the construction placed by the trial court and the lower appellate court.
17. The next question is the limitation. There is a concurrent finding of both the courts below that the suit had been filed within 12 years of dispossession of Ameena Bi and was based on title and was really within time. Under Article 65 of the Limitation Act which provides a period of 12 years as a period of limitation in filing the suit, the period begins to run ‘when the possession of the defendant becomes adverse to the plaintiff’. Once it is found that the purchase of properties by Kuppuswami Naidu in court auction was illegal and without any authority, further transfer by Kuppuswami Naidu to the remaining defendants/respondents also do not acquire any legitimacy. The possession was obtained by the defendants within 12 years from the date of filing of the suit by the plaintiff/appellant.
18. We thus set aside the impugned judgment and decree passed by the High Court dated July 26, 1976 and restore the judgment and decree passed by the Court of Subordinate Judge, Cuddalore dated October 30, 1972. The plaintiff/appellant would be entitled to full costs throughout.