ORDER OF REFERENCE TO THE FULL BENCH.

Napier, J. — One of the points taken in this appeal was whether the suit is barred by limitation by reason of the provisions of O. 21, Rr. 58 to 63 and Art. 11 of the Limitation Act. The claim was put in before the District Munsif under R. 58 and the District Munsif dealt with it as appears in Exhibit V. He first passed an order as follows:—“As this petition was filed late, this claim is Ordered to be notified to the intending bidders,” A fresh petition was put in before him and he passed another order as follows:—“The allegations of the Zamindarini will be notified to the bidders with the remark that the Zamindarini did not take steps for her Claim being enquired into during the last ten months.” On the face of it, this order appears to me to be one passed under the proviso to R. 58 of O. 21—“Provided that no such investigation shall be made where the Court considers that the claim or objection, was designedly or unnecessarily delayed.” It is argued before us that even if it is a case covered by the proviso, still R. 63 applies and that rule together with the operation of Art. 11 of the Limitation Act bars any suit on the same subject-matter after one year from the date of the order. The question as to the construction of R.63 had been before this Court and it was decided in a case reported in Narasimha Chetty v. Vijiapala Nainar(1) that “O. 21, R. 63 of the new Code is much wider in its scope than the corresponding Sect. 283 of the Code of 1882 and unlike the latter section covers cases in which there has been no investigation.” This case was followed by a Bench of this Court in a case reported in Ponnusami Pillai v. Samu Ammal(2). There the order was passed by the District Munsif in the following terms. “Application comes late and is rejected.” It was held by the Bench that “the language of Art. 11 in the new Act is more comprehensive than that of the previous Act and has been construed in this Court as covering order's after full investigation as well as orders passed on default” and with that view, the learned Judges in this case were in entire agreement. The matter again came before another Bench of this Court in Second Appeal No. 1986 of 1916, a case to which my learned brother was a party. In that case an objection had been filed and the order passed by the Munsif was as follows:—“The petitioner's objection will be noted in the proclamation.” The learned Judges say, “Here there was nothing except an order passed, so far as we can see, after no investigation in ordinary sense of the term, since it is not shown that anything was considered which could justify a decision as to the validity of the claim, and eventually no decision regarding it was reached. In fact the case resembles Babu Jodonath v. Radhamonee(3) and agreeing with the judgment in that case, we set aside the Lower Appellate Court's decision.” These decisions are in my opinion irreconcilable and I think that it is necessary to refer the matter to a Full Bench for decision as the question is not one of procedure only. The result of holding that Art. 11 applies is to reduce the period of limitation from twelve years to One year without any decision of a Court on the merits and without allowing the claimant or objector to prove his right. It appears that the history of this provision is as follows:—In the Code of 1859, there was a provision for a refusal to investigate in certain circumstances and there are decisions of the High Court of Calcutta on the language of the Code of 1859, namely, 7 W. R., 256, Raghoonath Doss Mohapattur v. Bydonath Doss Maharatka, Jugobundoo Bose v. Sachya Bibee, to the effect that a refusal to investigate was not an order which gave rise to the shortened period of limitation mentioned in the section of the Code. This view receives some support from the language of the Privy Council in a case reported in Sah Mukkun Lall Panday v. Sah Koondum Lall.

Then coming to the Code of 1877, we have Sects, 278 to 283. All these sections with the exception of Sent. 283 are practically in the same words, as in the present Code, but the language of Sect. 283 is “that the party against whom an order under Sects. 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.” It was held by this Court in Sarala Subba Rau v. Kamsala, Timmayya(4) that where a Court had under the proviso to Sect. 278, not made an investigation, it was clear on the face of it that Sect. 283 did not apply because Sect. 278 was not one of those Sections mentioned in Sect. 283. That is clear, but it is important to bear in mind that this omission is intentional, the object being to preserve the law as it existed under the Act of 1859, the principle being that in a case where there has been a refusal to investigate, (the Court having full discretion whether to investigate or not) it would not be proper to attribute to such an order a degree of finality as would justify the legislature in depriving a party of the longer period of limitation given to him in the Code and limit it to the one year provided for by Art. 11. That seems to have been the policy of both the Codes.

We now come to the present Code and it is of course to be noted as has been pointed out in the cases that the words “in Sects. 280, 281 and 282” have disappeared. They must disappear because the scheme of the Code is different in that these sections, reappear in the form of rules in O. 21, and it is certainly open to argument that the reason for the ommission of the definite rule or order was not for the purpose of extending the operation of R. 63, but because of the altered scheme of the Code. Bearing in mind the reason why the order under Sect. 278 was not incorporated in Sect. 283, it is a little difficult to see why the Code of 1908 should introduce a provision of this very drastic nature which had not been in the Codes of 1859 and 1882. Of course, if the language is such that it leads to no other interpretation, then that meaning must be ascribed to the words. Reliance is placed on the general nature of the laugage in R. 63 “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.” Certainly, the language is more comprehensive. First of all, we get the general words “where a claim or an objection is preferred,” which were not in Sect. 283 and then we get the simple use of the words “the party against whom the order is made.” Now it is of some importance to look at the later words of the section because if a party is to institute a suit to establish the right which he claims within a year and in default of that, the order is conclusive, one would except that the order referred to would be one which definitely disposes of the claim or the petition. But it is clear that the order which is passed under Sect. 278 is a simple refusal of the Court to take any proceedings which are provided for under those clauses, for it neither accepts nor rejects nor does it decide anything. The clauses are headed “Investigation of claims and objections” and the proviso in R. 58 is one under which a Court has an option, whether to take the matter on its file or not. On principle, it would seem that where a Court has refused to take the procedure laid down by the section and which it has an option to refuse, an order which is passed refusing to entertain the petition or claim and investigate it is not one which can be said to be conclusive with regard to the right to the property in dispute.

Suppose an order framed as follow, “I refrain from expressing any opinion on the claim and decline to investigate it as the claim is made at the last moment before sale. What will be sold is the right, title and interest of the debtor whatever that is; petition for investigation is dismissed.” Could it be said that such an order is an order “against a party on a claim preferred” within the meaning of Art. 11 or an order “against a party” within the meaning of R. 63. It seems to me that the proper interpretation of R. 63 is that it only applies to investigations and not to refusals and that being so, it would be an unnecessary extension to give Art. 11 any wider scope. In this view and on conflict of the authorities, I think it is advisable to refer to the Full Bench, the following questions:—

(1) Where a Court purports to make an order under the proviso to R. 58, O. 1, that is to say, an order refusing to investigate, does such an order come within the mischief of O. 21, R. 63, and Art. 11 of the Limitation Act?

(2) Is Exhibit V an order covered by Art. 11 of the Limitation Act?

Sadasiva Aiyar, J.—I agree that the question mentioned in the judgment just now pronounced by my learned brother should be referred to a Full Bench. There was a claim petition filed by the present plaintiff when the plaint properties were attached in execution of a decree passed against the present 2nd defendant in favour of the present 1st defendant. That petition so far as it relates to the plaint lands alleged that the judgment-debtor, the present 2nd defendant, had no saleable interest whatever in the land and that “it was the petitioner's private land which had been granted on service tenure to the 2nd defendant's father. She (the petitioner) prayed for the release of the property from attachment. That claim petition was E. A. No. 3307 of 1910 and was filed on the 23rd December 1910. The property had been proclaimed for sale and so the Munsif seems to have at once passed an order’ that as the petition was filed late it should be notified to the intending bidders. The sale seems to have been afterwards adjourned from time to time and the sale itself seems to have finally taken place only in January 1912. Meanwhile, the claimant, the present plaintiff, put in a fresh petition (evidently as supplementary to the claim petition 3307 of 1910) requesting the Court to make an enquiry into the claim petition in respect of the alleged non-saleability of the plaint land. Then the District Munsif holding his first order of December 1910 as not a final order passed a final order on the 16th October 1911 on that same claim petition No. 3307 of 1910 as follows:—“The allegations of the Zemindarini” (that is petitioner) “will be notified to the bidders with the remark that the Zamindarini did not take steps for her claim being enquired into during the last 10 months.” Neither in his first incomplete order nor in his final order did he use the word “rejected “or “dismissed” as regards the disposal of the petition. Now the question is whether the failure of the petitioner to file a suit within one year of October 1911 under O. 21, R. 63 to establish the right which she claims to the property in dispute precludes her by the bar of limitation from establishing the same right in this suit filed in January 1913. Under Sect. 247 of the Civil Procedure Code of 1859, it was enacted “no such investigation” (that is, into claim or objection) “shall be made if it appear that the making of the claim or objection was designedly or unnecessarily delayed, with a view to obstruct the ends of justice. The order disallowing the investigation shall not be subject to appeal, and the claimant shall be left to prosecute his claim by a regular suit.” In the previous Sect. 246, investigation was directed as a general rule on claim petitions and the last sentence of that section is, “The order which may be passed by the Court under this section shall not be subject to appeal, but the party against whom the order may be given shall be at liberty to bring a suit to establish his right at any time within one year from the date of the order.” Thus a clear distinction was made between an order passed after investigation (in favour of one party and against another party) and an order passed disallowing investigation. (I shall not use the expression “without investigation,” because that phrase may include cases where the Court was ready and prepared to investigate but through the default of the petitioner to pay batta or to put in appearance or to adduce evidence, the claim petition was decided against him. Even in cases of dismissal for default, Kallu Mal v. Brown and Sarala Subba Rau v. Kamsala Timmayya held that the plaintiff was not precluded under the old Code by the limitation bar of one year.) Then the Code of 1877 by the proviso to Sect. 278 gave the Court the same power to decline investigation when it considered the claim unnecessarily delayed and, then under Sects. 280, 281 and 282, provided for orders being passed on investigation, that is, in cases in which it did not refuse to embark on investigation under the powers given to it by the proviso to Sect. 278. Then Sect. 283 enacted that “the party against whom an order under Sects. 280, 281 or 282” (that is, where it has not refused to investigate) “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.” Art. 11 of the Limitation Act provides one year's limitation for the suit. The present Code of 1908 under O. 21 R. 63 omits references to R. 60, 61 and 62 of O. 21 which correspond to old Sects. 280 to 282 and uses the expression “the party against whom an order is made” (on the claim preferred), The question is whether where a Court has refused investigation under the proviso to R. 58, it can be said that an order has been made against that party on the claim petition preferred by him. I think no order has been made on the claim preferred under those circumstances, but only an order refusing to make any order on that claim petition either for or against the petitioner. In Subba Aiyar v. Subba Aiyar decided by my learned brother and myself, we thought it unnecessary to consider whether the provisions of the new Civil Procedure Code and the new Limitation Act were intended to and could take away the right of suit under the general law which the plaintiff had till 31st December 1908 where the Court refused to investigate the claim petition which he had preferred on an attachment. In Narasimha Chetty v. Vijiapala Nainar, the order which was held to have become conclusive after one year was as follows:—“The claim is based on a sale-deed dated a fortnight before the attachment. I find that the claim has been unnecessarily delayed and dismiss it without investigation. O. 21, R. 58, (1) proviso.” In Ponnusami Pillai v. Samu Ammal the order was “Application comes late and is rejected.” The learned Judges Seshagiri Aiyar and Bakewell, JJ., refused to accept Mr. Devadoss' contention that as there was no investigation, the one year rule did not apply. The learned Judges remarked that “the contention came too late in the day” and they quoted Narasimha Chetty v. Vijapala Nainar and Subba Aiyar v. Subba Aiyar in support. But as I have said already, 31 I. C., 250 ‘did not decide the question as it was considered unnecessary to decide it for the purpose of that case. In Second Appeal No. 1986 of 1916 the order on the claim petition was that the claim would be referred to in the sale proclamation. The claim was neither rejected nor dismissed expressly in that case. Oldfield, J., and myself held that there was no order passed against the claimant under those circumstances as “no decision regarding the claim was reached.” I think the presence or absence of the words “rejected or dismissed” is immaterial provided that it is clear that what the Court substantially intended to do was to investigate the claim under the powers given to it by the proviso to R. 58, O. 21. I am inclined to hold that in the case there was no order on the claim against the claimant but only an order refusing to pass any order on his petition either far or against the claimant and that therefore O. 21, R. 63 does not apply to such an order. But seeing that the decisions in Narasimha Chetty v. Vijiapala Nainar and Ponnusami Pillai v. Samu Ammal seem to be against that view and that there are numerous decisions of the Calcutta High Court all of which (if I may be permitted to say with respect) cannot be reconciled with one another, 1 think that the question whether the order Exhibit V in this case was an order passed on his claim petition against the plaintiff so as to preclude him from bringing a suit after one year to establish the rights which he sought to have investigated by the Court in the claim petition should be considered by a Full Bench and I agree to the reference proposed by my learned brother. I do not think that the mention in the order of a direction to the ministerial department of the Court to proclaim the fact of the making of the claim to intending bidders is relevant in the consideration of this question.

[This Second Appeal came on for hearing as per above order on the 15th and 16th days of July 1918, before the Full Bench as constituted above.]

Mr. P. Narayanamurthi for the Appellant.

Messrs. A. Krishnaswami Aiyar and B. Narasimha Row for the Respondents.

OPINION

The Chief Justice. — The general policy of these provisions of the Code, as explained by the Judicial Committee in Sardkari Lal v. Ambika Pershad is to secure the speedy settlement of questions of title raised at execution sales. Sects. 283 of the Codes of 1877 and 1882 only gave a right of suit to the party against whom an order had been passed under Sects. 280, 281 or 282, and did not provide for the case where the Court under Sect. 278 refused to investigate the claim on the ground that it has been designedly or unnecessarily delayed. In such cases, Sect. 283 failed to provide for the speedy settlement of the questions of title raised by the claim. The legislature would appear to have intended to supply this omission when in R. 63 of O. 21 of the present Code it conferred the right “of suit in general terms “where a claim or an objection is preferred” upon “the party against whom an order is made,” instead of limiting it, as in Sect. 283, to cases in which an order had been passed under Rr. 60, 61 and 62 (Sects. 280, 281 and 282 of the old Code). Where a claim or objection is preferred under R. 58 (formerly Sect. 278), and the Court rejects it under the proviso to that Rule on the ground that it was designedly or unnecessarily delayed, the unsuccessful claimant or objector in my opinion clearly comes within the words “the party against whom the order is made.” Rr. 63 does not speak of any party but of the party against whom an order has been made, and assumes that, where a claim or objection is preferred under R. 58 (Sect. 278), there must always be a party against whom an order is made within the meaning of the Rule. I cannot agree with the suggestion in Napier, J's order of reference that the change in the language of R. 63 was due merely to the altered scheme of the Code. If no change had been intended, Rr. 60, 61 and 62 would simply have been substituted in R. 63 for Sects. 280, 281 and 282 in the corresponding Sect. 383 of the former Code. We are bound I think to give effect to the clear intention of the legislature to widen the scope of the rule in accordance with the general policy of this legislation as explained by the highest tribunal. A claimant who comes forward too late in the day to entitle him to have his clain investigated having regard to the proviso in R. 58, none the less raises a question of title with regard to the attached property; and there is nothing unfair in depriving him owing to his laches of the chance of getting a provisional decision in his favour on his claim petition and requiring him to proceed to assert his title by suit within the shorter period of limitation prescribed when questions of title are raised with regard to attached property. I accordingly agree with Narasimha Chetty v. Vijiapala Nainar and Ponnusami Pillai v. Samu Ammal. As regards S. A. 1986 of 1916 the attention of the Court was not called in that case to the alteration in the language of R. 63 on which my opinion is based. Our answer to the 1st question is that the case comes within the terms of O. 21, R. 63. As regards the second question assuming as Sadasiva Aiyar, J. appears to hold in his order of reference that the Zamindarini's claim in E.A No. 3307 of 1910 was not finally rejected by the order passed on it on 23rd December 1910, we think that the subsequent order Exhibit V was an order made against the Zamindarini within the meaning of Rs. 63, and was consequently an order covered by Art. 11 (1) of the Limitation Act of 1908. Though the order only was that the allegations of the Zamindarini would be notified to bidders, we think it amounted and was understood to amount, to a rejection of the claim on the ground that it was filed too late.

Old field, J.—I agree.

Seshagiri Aiyar, J.—I entirely agree. The language of O. 21, R. 63 leaves little room for doubt that all orders which negative the right set up by the claimant or the decree-holder are within the rule. Prima facie the decree-holder attaches or gets attached the property in dispute as that of the judgment-debtor. The law compels him to give certain information to the Court before the proceedings in attchment are taken. When this requirement is satisfied unless a third party intervenes the sale will be effected as if the property belonged to the judgment-debtor. When a claim is preferred the usual prayer is that the attachment should be raised as the property does not belong to the judgment-debtor but belongs to the claimant. On the presentation of such a petition if the order is not that the property be released from attachment it must be taken to be an order against the claimant. The practice of notifying claims to intending bidders is not warranted by anything contained in the Code of Civil Procedure. If often leads to the depreciation is value of the property to be sold and is not calculated to advance the right of the claimant in any way. Consquently it seems to me that the procedure adopted by some of the Subordinate Courts of notifying objection by claimants at the time of the sale without expressing any decision upon those objections should be discouraged. Although the practice is not a salutary one, I fail to see how this procedure can be construed as not having the force of giving a decision against the claimant. His right to raise the attachment must be deemed to have been negatived when the property was ordered to be sold without releasing it from attachment. Therefere, in my opinion, an order on a claim petition which expresses no final judgment upon the right put forward but simply directs the sale after notifying the claim is an order against the claiment and he is bound to Institute a Suit under Art. 11 of the Limitation Act. The history of the legislation has been reviewed in the judgment of the learned Chief Justice and I do not propose to deal with that question. I agree with the answers proposed.

C. K.Questions answered in the affirmative.