Jugal Kishore Marwari v. Ambika Debi

We are invited in this Rule to set aside an order under r. 99 of Or. 21 of the Code of 1908. The Petitioners in execution of a decree against their judgment-debtor, one Bejoy Krishna Mookerjee, attached his house and the adjoining lands. Thereupon, one Ambika Debi, the mother of the judgment-debtor, and the Opposite Party in this Rule, preferred a claim under r. 58 of Or. 21 of the Code on the 10th December, 1909. Her allegation at the time was that the house and the land belonged to her and that she was in possession thereof in her own right. She did not, however prosecute her claim, with the result that it was dismissed on the 9th April, 1910. Execution, thereupon, proceeded on the basis of the decree, and on the nth June 1910 the decree-holders purchased the property at the execution sale. They subsequently applied for delivery of possession, and on the 20th November, 1911 symbolical possession was delivered to them. Later on, they applied for delivery of actual possession. The peon who went to execute the writ reported that he had been obstructed, and on the 13th January, 1912 the mother of the judgment-debtor put in an application under r. 97 of Or. 21 of the Code. The Court did not investigate whether the objector was bonâ fide in possession of the property; but made an order the effect of which was a denial of all assistance to the auction-purchasers in their endeavour to obtain possession of the property purchased by them. The order of the Court below clearly cannot be supported.

Even if it be assumed that the application of the objector could have been entertains the Court could not make an order under r. 99 without an investigation as to whether she was in possession of the property in good faith and on her own account. This position had not been controverted on behalf of the Opposite Party and it has been suggested that the case should be remitted to the Court below in order that the requisite enquiry may be made. We are not however prepared to accede to this prayer, The application clearly ought not to have been entertained. The objector as we have already stated made an application under r. 58 on the 10th December, 1909. Her claim was dismissed on the 9th April, 1910. It is true that there was no investigation on the merits, but that was entirely by reason of her own default; she wilfully deprived herself of the opportunity open to her at that stage. Rule 63 shows that where a claim of this character has been preferred, the party against whom the order has been 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 is conclusive. It has been contended, however, on behalf of the Opposite Party, on the authority of the decision in the case of Kunj Behary Lal v. Kandi Prasad Narain Singh(1), that as there was no investigation on the merits, she is in the same position as if she had never made an application under r. 58. We are of opinion, that this position cannot be supported. No doubt, in relation to the question of limitation applicable to a suit of the description mentioned in r. 63, it has been held that Art. II of the Second Schedule of the Limitation Act does not apply if the application has been refused without an investigation on the merits, Kallar Singh…Defendant, *; v. Toril Mahton & Anr.…Plaintiffs,(2). Upon this point, however, there is a divergence of judicial opinion and there is weighty authority in support of the view that where an application has been dismissed, with or without investigation, a regular suit, if instituted, must be commenced within one year from the date of such order. Gooroo Das v. Sonamonee(3), Sreemunta v. Tajooddin(4), Tripoora v. Ijatoonnessa(5), Sadut Ali v. Ramdhone(6). But it is not necessary for our present purpose to express any opinion upon this question. It is sufficient to hold that, on the face of r. 63, the order of refusal is plainly final till a regular suit has been instituted and successfully prosecuted. Consequently the objector cannot now be allowed to practically reiterate the claim which she preferred on the 10th December, 1909, and which was disallowed without investigation by reason of her own default. The petition of objection filed on the 12th January, 1912, in this view, ought not to have been entertained. This conclusion is supported by the decision in Sankar Nath Pandit v. Madan Mohan Das(7).

The result is that the Rule is made absolute and the order of the Court below set aside. That Court is directed to place the auction-purchasers in actual possession of the property and to render such assistance to the peon as may be necessary to carry out the order of the Court. The Petitioners are entitled to their costs in this Court. We assess he hearing fee at three gold mohurs.

Rule made absolute.