1. This is an appeal from a decree of the Court of the Subordinate Judge of Tuticorin holding that a suit on a mortgage was not barred by limitation, the point taken before us being that the suit was barred. The bar is said to arise under Article 11, Lim. Act, and purports to be based on the failure of the plaintiff in this suit to bring his suit within one year from the date of the disposal of a certain objection petition. The lower appellate Court has held that though the proceedings were under O. 21 of the CPC, they were not in a claim petition instituted under R. 58, but were proceedings in settling a proclamation under the provisions beginning with R. 64, namely, sale generally. The learned Subordinate Judge has not given any reasons in his judgment, but it is sought to be supported by a ruling to be found in the decision of the High Court of Bombay in Ganesh Krishna Kulkarni v. Damoo Nathu Shimpi(1). There is some slight difference in the procedure in that case and in this case, but the High Court certainly considered the question on the assumption that there was an objection taken under S. 278, corresponding to R. 58, yet they held that the order was not one passed under S. 283 and that therefore there was no bar of limitation. It has been pointed out however by a Full Bench of this Court in Venkatarathnam v. Banganayakamma(2) that under the new Code the powers of a Court dealing with objections are much wider than under the old Code. The learned Chief Justice points out that under the old Code, S. 283 corresponding to R. 63, was definitely limited by its own language to the three preceding Ss. 280, 281 and 282, and that it was only where an order had been passed under Ss. 280, 281 and 282 that the order was conclusive in the absence of a suit; whereas under the present R. 63 the words being “where a claim or an objection is preferred,” it necessarily follows that where any claim is made under R. 58, then any order that is passed comes within the mischief of R. 63. It is clear therefore that the decision in Ganesh Krishna Kulkarni v. Damoo Nathu Shirnpi has no application to the present case. In the present case the claim made is to be found in Ex. 2. In that claimant asks that
“an order should be passed directing that it should be notified at the sale on 9th February 1912, that the petitioner's mortgage has not been discharged and the proclamation of sale amended accordingly and the sale should be held subject to the mortgage.”
2. The order was:
“The sale comes off tomorrow. The sale proclamation notifies existence of a mortgage, but says it has been discharged. Inquiry cannot now be held whether it has been discharged. Petition dismissed.”
3. It seems to us perfectly clear that the provisions of R. 58 cover the claim setting up mortgages and the liability of the property to the mortgage at the time. There can be no doubt that the Court can deal, and could deal under the old Code with the liability or non-liability of the property to a mortgage, Ganesh Krishna Kulkarni v. Damoo Nathu Shimpi being an authority for that proposition because one particular form of order in that respect is definitely provided for in R. 62 and in the old S. 282, and it necessarily seems to follow that if one particular form of order on the claim on a mortgage can be passed then any claim with respect to an alleged mortgage or existing liability of the mortgage must be a claim Under R. 58. For these reasons we are satisfied that a claim was made under R. 58, although the objection did not purport to be put in under that rule and that it was disposed of by an order which is governed by R. 63. This is the view taken in a case in Ponnusami Pillai v. Samu Amma(3), with which we concur.
4. The result is that the suit, having been brought more than a year from the date of the order, is barred by limitation. The appeal must be allowed and the suit dismissed with costs throughout.
S.N/R.K
5. Appeal allowed.