1. This appeal arises out of a suit for establishment of right to, and recovery of possession of, the property in dispute from which the plaintiffs were dispossessed by the defendants Nos. 1 to 15 who purchased the property in execution of a decree which they obtained against one Baidya Nath Sarkar.
2. It appears that the defendants Nos. 1 to 15 took possession of the property in dispute through Court, and the plaintiffs applied to the Court under Order XXI, Rule 100. On the day ultimately fixed for the hearing of the case, namely, on the 14th February 1914, neither the petitioners nor their Pleader appeared and the petition was accordingly dismissed for default.
3. The present suit was instituted on the 27th July 1915 which was more than one year after the date of the said order.
4. The question is whether the suit is barred by the previsions of Article 11A of the Limitation Act (IX of 1908).
5. The Court of first instance decided both the questions of title and limitation in favour of the plaintiff. The lower Appellate Court has held that the suit is barred by limitation under article 11a of the limitation act.
6. 0. XXI, Rule 97 deals with a case of obstruction or resistance by any person to a holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree, and sub Rule (2) of that rule lays down that the Court shall fix a date for investigating the matter and rules 98 and 99 states what is to be done according to the result of the investigation.
7. Rule 100 deals with the case of any person other than the judgment-debtor who is dispossessed of immoveable property by the holder of a decree for the possession of such, properly, or, where such property has been sold in execution of a decree, by the purchaser thereof.
8. Sub Rule (2), Rule 100 lays down that the Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
9. R, 101 provides that the Court, if satisfied that the applicant was in possession of the property on his own account, or on account of some person other than the judgment-debtor, shall direct that thy applicant be pat into possession of the property.
10. Then comes Rule 103 which provides that any party not being a judgment-debtor against whom an order is mail a under Rule 98, Rule 90 or Rule 101, may institute a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit (if any), the order shall be conclusive.
11. There were similar provisions in Act XIV of 1882, Section 332 of which dealt with the case of dispossession of any person other than the judgment-debtor by the holder of a decree for possession, Section 334 dealt with eases of obstruction to the purchaser of any immoveable property by the judgment-debtor or any one on his behalf, and Section 335 dealt with cases where the purchaser of any such properly is resisted or obstructed by any person other than the judgment debtor claiming in good faith a right to the present possession there of, or where in delivering possession any such person is dispossessed.
12. There is no doubt that upon an application being made to the Court under Order XXI, Rule 100, the Court has to hold some sort of investigation as expressly laid down by sub-rule 2 of Rule 100 and Rule 101.
13. In this case there was no investigation and the case was dismissed for default, The question is whether under these circumstances the special limitation contained in article 11a of the limitation act applies,
14. The provisions of Order XXI, Rule 97 to 103 are analogous to Sections 278 to 283 of the Civil Procedure Code, Act XIV of 1882, (corresponding to Order XXF, Rule 53 to 63 of the present Civil Procedure Code). Those sections relate to claims preferred to attachment of immoveable property.
15. There have been numerous decisions on the question whether the one year's limitation under Article 11 of the Limitation Act, (XV of 1877), apply to cases where there has been no investigation of a claim, under Section 278, or objections under Section 334 or 335, Civil Procedure Code (Act XIV of 1882). The decisions are not uniform.
16. In the case of Sardhari Lal v. Ambika Pershad (1) in dealing with a case under section 278 of act xiv of 1882 the Judicial Committee observed that the policy of the Act evidently is to secure the speedy settlement of questions of title, and pointed out that the Code does not prescribe the extent to which the investigation should go. That indicates that in their Lordships' opinion (as the sections expressly laid down) there should be some investigation before the order can be treated as conclusive, There are various other cases in which it has been held that there must be soma investigation by the Court before the order can be held to be conclusive and Article 11 of the Limitation Act may be applicable to the case.
17. It is to be observed, however, with reference to claim cases, that sections 278 to 282 provided for an investigation and Section 283 provided that the party against whom an order under Section 280, 281 or 232 is passed may institute a suit to establish the right which he claim to the property in dispute, but subject to the result, of such suit, if any, the order shall be conclusive." But the corresponding provisions of present Code of Civil Procedure (Act V of 1908) vie., Order XXI, Rule 63 provides that "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." It is to, be observed, therefore, that whereas in section 283 of act xiv of 1882 there was express reference to sections 250, 281 and 282 which dealt with investigation into a claim. Order XXI, Rule 63 does not make any mention of any specific rules under which orders in claim cases are passed. Upon these grounds it has bean held in some recent oases that there has been a change in the law and that the decisions under the old Code are no longer in force.
18. In the case of Nogendra Lal v. Fani Bhusan (6) it was held 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 The learned Judges held as follows:---
" All that is now necessary is that a claim should be preferred under Rule 58 and that there should be an order either allowing or rejecting it. The party against whom the order is made may then bring a suit in the language of Rule 63 'to establish. the right which he claims to the property in dispute'."
19. The same view has been taken in the case of Machi Raju Venkataratnam v. Vadrevu Ranganayakamma (7) where a Full Bench of the Madras High Court referring to the general policy of the previous Code as explained by the Judicial Committee in Sardhari Lal v. Ambika Pershad (1) said that Section 283 of the Codes of 1877 and 1882 only gave a right of suit to the party against whom an order had been pasted under Section 280, 281 or 282 and did not proved for the case when the Court under Section 278 refused to investigate the claim on the ground that it had been designedly or unnecessarily delayed. In such cases, Section 283 failed to provide for the speedy settlement of questions of title raised by the claim. The learned Judges held that the intention of the Legislature was to widen the scope of the rule in accordance with the general policy of his legislation as explained by the highest Tribunal. It may be mentioned that in the case before the Madras Full Bench there was no order either allowing or rejecting the claim, and the Court directed that the allegations of the claimant would be notified to the bidders with the remark that she "did not take steps to have her claim inquired into during the last 10 months,"
20. A similar view has also been taken in the case of Ponnusami Pillai v. amu Ammal 38 Ind. Cas. 937 : 31 M. L. J. 247. where it is held that,
" the language of Article 11 in the new Act is more comprehensive than that of the previous Act, and that has been construed in this Court as covering orders after full investigation as well as orders passed on default."
See also observations on the point in the case of
Satindra Nath v. Siva Prasad Bhakat (8),
21. These decisions relate to claim oases and, as stated above, they are based upon the alteration in the wording of Rule 63, Order XXI as compared with Section 283 of the old Code.
22. So far as the provisions of rule 103 are concerned, there has been no change in the Civil Procedure Code as compared with Section 332 and 335 of the old Code.
23. Sub-rule (2) of Rule 100 and Rule 101 (as also rules 97 to 99) expressly provide that the Court shell investigate the matter and any order made under rule 101 (or Rule 99) must, therefore, be the result of such investigation. When, therefore, Rule 103 lays down that any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but subject to the result of such suit (if any) the order shall be conclusive, it evidently contemplates an order passed after investigation as laid down in rules 97 to 99 or rules 100 and 101. The conclusiveness, therefore, attaches to an order made after investigation under those rules. The qusstion has been considered with reference to section 335 of the old code in the case of Kunj Behari Lal v Kandh Prasad Narain Singh (2) where the learned Judges held that
"it is manifest, therefore, from the language of the Code itself, that the only order upon which the character of finality is impressed, is an order made upon inquiry"
and that where there has been no investigation at all and no judicial determination and the Court without any enquiry dismissed the application for default and withdrew the proceedings, it is impossible to say that the order is of the description contemplated by Section 335, and they approved of the decision in the ease of
Sarat Chandra Bisu v. Tarini Prasad Pal Chowdhury (3).
24. We have been referred by the learned Pleader for the respondent to the cases of Shagun Chand v. Shibbi (9) and Chandi Prasad v. Nand Kishore (10) in support of the proposition that one year's rule of limitation has been applied even in cases where there has been no investigation. But in the first case it appears that the Pleader for the applicant appeared and stated that his client did not wish to adduce any evidence and the application was accordingly dismissed. In the second case, the Pleaders for both parties were present; no evidence was adduced and the learned Judges held that the dismissal of the petition under those circumstances could not be treated as dismissal for default of appearance. Neither of these cases, therefore, was dismissed for default.
25. It is also contended that the principal upon whish it has been held that the limitation of one year applies to orders passed in connection with claim cases, even where there bas been no investigation should also be applied to a ease like the present. Bat, as pointed out above, Rule 63 does not refer to orders passed under Rule 60, 61 or 62 of the Code under which the orders are made and it is upou that ground that the learned Judges in Nogendra Lal v. Fani Bhusan (6) and some other cases referred to above, held that the law had been changed.
26. So far as Order XXI, Rule 103 is concerned there has been no change in the law. That rule like section 335 of act xiv of 1882 refers to the previous rules, vit., Rule 98, 99 and 101 under which orders are to be made after investigation. The distinction appears to be a narrow one, because orders under the claim sections have also to be made after investigation. Hut, having regard to the fact that although there was express reference to Sections 280 to 282 in Section 283, of Act XIV of 1882, there is no reference to those sections (corresponding to rules 58 to 62) in Rule 63, whereas in Order XXI, Rule 103 there is express reference to Rule 98, 99 and 101 under which the investigation is to be made, and, having regard to the decisions referred to above, we are constrained to hold that in cases coming under Order XXI, Rule 98, 99 or 101, an order in order to be conclusive must be an order passed after investigation.
27. The next question for consideration is what constitutes investigation," and it is a question of some difficulty in some cases.
28. As pointed out by the Judicial Committee (in Connection with claim cases) in Sardhari Lal v. Ambika Pershad (1) the Court does not lay down to what extent the investigation should go. There seems to be a divergenie of opinion as to what constitutes " investigation."
29. In a number of eases mostly relating to claim eases---where the claimant did not adduce evidence and the claim was dismissed, it was held that a suit brought more than a year after the date of the order was barred, dome of the decisions were based on the ground that, where a party was allowed an opportunity of adducing evidence but failed to do so and there was an order rejecting the claim purporting to be made under Section 281, there was investigation sufficient to bring the case under Section 281, See Rahim Bux v. Abdul Kader 32 C. 537. and the earlier cases of Gooroo Doon Roy v. Sona Monee Dossia 20 W. Rule 845. and Sreemunto Hairah v. Syud Tajooddeen 21 W. Rule 409.
30. In some cases where the party was rot even present as in Tripoora Soonduree Debia v. Ijatoonnissa Khatoon (11), Gulab v Mutsaddi (12) Jugal Kithore Marwari v. Bejoy Krishna Mukerjee (13) (the last two cases being under the present Code) and Lachmi Narain v. Martindell 19 A. 253: A. W.N. (1897) 60 : 9 Ind, Dec, (N. S.) 166 (F, B.). (a case under the Rent Act XII of 1881) the same principle was applied.
31. On the other hand, in some other cases it was held that the limitation did not apply where the order was passed dismissing the case for default of appearence see Kallar Singh v. Toril Mahton (4) and Sarala Subba Rau v. Rammsala Timmayya (5)],
32. It is difficult to reconcile all these decisions. It may be said (as it was urged in some of the cases) that there is no reason why the limitation should apply where the party appears and is unable to, or does not, adduce evidence; and that the limitation should not apply where the party takes care not to come to Court on the day fixed for hearing. Bat a distinction has been drawn in the Civil Procedure Code between a case where it is dismissed for default, and a case where the party appears and fails to adduce evidence and the case is, in consequence, dismissed in which event the dismissal is not one for default.
33. It is pointed out on behalf of the respondent that article 11a of the limitation act does not refer to any section or rule of the Civil Procedure Code and is very general in its terms, It is accordingly (sic)confended that an order passed under Rule 103 dismissing a case for default comas under Art. 11A of the Limitation Act.
34. Article 11A refers to a suit by a person against whom an order has been made under the Code (among others) upon an application by a pet son dispossessed of immoveable property in the delivery of possession thereof to the decree holder or purchaser. Bat although the Article does not refer to any Section, the order must be an order under O, XXI, Rule 103. That rule expressly refers to Rule 98, 99 and 101 and thane rules provide for investigation into a petition of objection. The right of suit is given by Rule 103 only when there is any order under Rule 98, 99 or 101, and Article 11A merely provides for limitation applicable to such suits. We do not think it satisfactory to hold that although the provisions relating to claims and those relating to delivery of possession are similar in nature, different periods of limitation should be applied, bat, as already stated, having regard to the decisions under sections 332 and 335 and to the fact that the language of sections 332 and 335 has been retained in 0. XX', Rule 103, though the language of Order XXI, Rule 63 has been altered from that of section 283 of act xiv of 1882, we must hold that the order dismissing the application under Order XXI, Rule 101 for default is not barred by the provisions of article 11a of the limitation act.
35. The appeal must accordingly be allowed, The decree of the lower Appellate Court is set aside and that of the Court of first instance restored. We make no order as to costs of this Court and of the lower Appellate Court which will be borne by each party.