Phillips, J.:—The suit house originally belonged to the 1st defendant's father, Narayana Aiyangar, and his brother, the 2nd defendant, Alagasinga Aiyangar. A partition was effected between the brothers in 1881, but not by metes and bounds. Narayana's share was sold to one Dikshitar, on 1st May, 1905. Alagasinga's share was sold to the plaintiff on 10th March, 1906. On 30th March, 1906, Narayana's share was delivered to Dikshitar by symbolical delivery. On 25th March, 1907, Dikshitar sold his share to Alagasami's son, the 3rd defendant. On 3rd July, 1917, the plaintiff attached Alagasinga's share, in execution of a decree. On 4th March, 1918, Narayana put in a claim petition. On 10th May, 1918, the claim was allowed and on 19th August, 1918, the present suit was brought, under O. 21, R. 63; meanwhile on 3rd April, 1918, Alagasinga had brought a suit to recover possession of his share, a suit which has been dismissed.

The lower Courts have found that there has been adverse possession, by Narayanan's son, the 1st defendant, for 12 years before suit, and now in this Second Appeal, two questions arise: (1) Whether the attachment by the plaintiff on 3rd July, 1917, puts an end to the adverse possession of 1st defendant, namely, whether the possession of 1st defendant, from that date till this suit was filed, continued to be adverse, and uninterrupted; (2) Whether the symbolical delivery of 30th March, 1906, put an end to the 1st defendant's adverse possession or not. The decree, in which symbolical delivery was given, was against Narayana alone and 1st defendant, his son, was not a party to it.

The first point has been expressly decided, in Sitharami Reddi v. Venku Reddi. In that case, the defendants had been in possession, for less than 12 years, at the time of attachment, but continued in possession, until the suit was brought, more than 12 years, after their possession commenced. It was held in this Court that the attachment could not have the effect of arresting the running of time against defendants. If that ruling is adopted, it is clear that the plaintiff's suit is barred by limitation. But it is urged for the appellant that the decision in Pandian Pillai v. Vellayappa Rowther, is authority to the contrary and this contention appears to have some force, for, in that case, the facts were very similar and it was decided against the parties claiming adverse possession. Reference is made, in the judgment, to Sitharami Reddi v. Venku Reddi, and it is not dissented from, nor criticised in any way, apparently because it was held that no question of interruption of possession or of its continuance, despite the attachment, arose. Although, therefore, the decision appears to be in direct contravention of the decision in Sitharami Reddi v. Venku Reddi, it is based on other grounds, grounds which are not too clear, because, in the judgment, the facts do not appear to be correctly set out, owing to the apparent transposition of the words “plaintiff” and “defendant” in two places. Reliance is also placed on Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite, and that no doubt is an authority, directly in favour of the appellant; for, it was there held that in such a suit, namely, under Sect. 283 of the Old Civil Procedure Code, it must be proved “that on the date of the attachment, which was subsequently raised by order of the Court, on the application of the 1st respondent, their judgment-debtors had a subsisting right to the property”. For this proposition Harishankar Jebhai v. Naran Karsan, is relied on, but a reference to the latter shows that in that case the date of the order on the claim petition was treated as the date on which the adverse possession ceased. If that date is taken in the present case, namely, 10th June 1918, the plaintiff's suit is barred by limitation. This latter proposition is supported by the authority of the Calcutta High Court in Phul Kumari v. Ghanshyam Misra, where it was held that the order of the Court was the basis of the subsequent suit. We have not been referred to any other authority than Vasudeo Atmaram Joshi v. Eknath Balakrishna Thite which is directly in point, and inasmuch as that case purports to be based on a prior decision, which was not to the same effect, there is no argument in the judgment, which goes to show that the decision in Seetharami Reddi v. Venku Reddi is incorrect.

It is suggested that we should refer this point for the decision of a Full Bench; but I do not think it is necessary in view of the following circumstances. In the first place, the decision in Seetharami Reddi v. Venku Reddi, has never been dissented from, although it was given so long ago as 1901, and on the merits I respectfully agree with the conclusion. Attachment of immoveable property is effected, by an order prohibiting the judgment-debtor, from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge; (O. 21, R. 54, Civil Procedure Code). It has always been held that an attachment does not confer any interest in the property and it is difficult to see how a mere attachment can disturb the continuance of physical possession of the holder at the time. There are many authorities for holding that adverse possession is not disturbed, except by actual ouster. For instance, in Pankaj Mohan v. Bipin, where the Court ordered the property to be put in possession of a Receiver, but possession was not actually given, it was held that possession was not disturbed. Again in Singaravelu Mudaliar…(First Defendant), v. Chokkalinga Mudaliar…(Plaintiff), .*, it was held that a declaration that the party in possession had no title has not the effect of interrupting the continuity of his adverse possession; at page 751 of the same volume, it was held that a decree which was not executed did not disturb possession. In view of these decisions, it is difficult to hold that a mere attachment, under which possession is in no way disturbed, can affect the continuity of adverse possession. Appellant relies on two cases reported in Rajah of Venkatagiri v. Isakapalli Subbiah and Sarat Chandra v. Bibhabati Debi; but in both these cases, the attachment was not one made under the Civil Procedure Code, but was made by a Magistrate, in proceedings under Chapter 12 of the Criminal Procedure Code and must be distinguished on the ground that an attachment under that chapter implies an actual taking possession of the property by the Magistrate, or by some one under his orders. I am therefore of the opinion that the decision in Seetharami Reddi v. Venku Reddi is correct, and see no necessity for referring the case to a Full Bench, as there is no actual conflict of opinion in this Court. In this view, it is unnecessary to decide the second point raised, which was not raised in the lower Courts. The appeal is accordingly dismissed with costs.

Odgers, J.:—Two points have been raised in this appeal:—(1) Is symbolical possession, (i.e) delivery by the court of immoveable property, in the execution of a decree sufficient to interrupt adverse possession? and (2) does an attachment of immoveable property serve to interrupt adverse possession?

The plaintiff, who brings the suit under O. 21, R. 63 after the disposal of a claim petition, in favour of defendant's father, pleads that since the 10th of March, 1906, the plaintiff's father and himself had been in possession of a moiety of the immoveable property in question and he brought the suit, for a declaration that the other moiety belongs to the 3rd defendant, or to defendants 2 to 4 and that it was liable to be attached, in execution of the decree in O. S. No. 154 of 1912.

The 1st defendant who is the only contesting defendant, pleaded that he and his father had been in adverse possession to the plaintiff and the other defendants of the whole of the property in question, for a period of over 25 years. The dates material to the points set out are:—On the 8th of June 1881, there was a partition between the 1st defendant's father and his coparcener, Alagasinga of the property in question. On the 1st of May 1905, there was a court auction sale of the 1st defendant's share, to one Dikshitar. On the 30th of March, 1906, there was symbolical delivery of 1st defendant's share to Dikshitar. On the 25th of March, 1907, there was a private sale by Dikshtar to the son of Alagasinga who was the 1st defendant's co-parcener above referred to and previously on the 10th of March, 1906, there was a private sale of Alagasinga's share to the plaintiff's father. On the 3rd of July, 1917, there was an attachment by plaintiffs of Alagasinga's share. On the 4th of March, 1918, there was a claim petition by the 1st defendant's father, who was in possession. On the 3rd of April, 1918, the plaint in Second Appeal 109 was presented by Alagasinga. On the 10th of June, 1918 the claim of 1st defendant was allowed and the attachment was raised and on the 19th of August, 1918, the plaint in the present Second Appeal was presented by the plaintiff.

It will be observed that both the plaints are more than 12 years from the date of the symbolical delivery of the plaintiff's share to Dikshitar, but the attachment by the plaintiff on the 3rd of July, 1917, is within 12 years.

Now, as the first point, reliance is placed by the appellant on the cases reported Kocherlakota Venkatakristna Row v. Vadrevu Venkappa, and Sri Radha Krishna Chandarji v. Ram Bahadur. In the first case, it was held that the effect of symbolical delivery was in the case of the judgment-debtor himself absolute; but where the judgment-debtor is not the party in possession, adversely to a third party (as here), delivery made in the absence of that third party and not personally to him, cannot by itself affect his possession, nor amount to an ouster or dispossession of him and his possession will continue uninterrupted; but if he was present and the delivery takes place adversely to the claim of such third party, it may be equally operative as against him. It was contended that the present case is the case of a stranger, resisting the suit, not of a stranger trying to recover as 1st defendant was not a party to the suit. In Sri Radha Krishna Chandarji v. Ram Bahadur it was held that symbolical possession will avail and dispossess defendants sufficiently, because they were parties to the proceedings, in which it was ordered and given. Guggobundhu Mookerjee v. Ram Chunder Bysack, is affirmed. The case in Jobeda Khotnum v. Tulsi Charan Das was also relied on. The learned Judges there say that the decisions show that symbolical possession does not in any way effect the possession of, or give start to a fresh period of limitation against persons who are not parties to the suit, or execution proceedings. The learned Judges refer to a Privy Council case, reported in Sri Radha Krishna Ghanderji v. Ram Bahadur where their Lordships say that.

“Symbolical possession is sufficient to interrupt adverse possession, when the adverse possessor is a party to the execution proceedings, in which symbolical possession is given; as regard persons not so parties, only actual dispossession can interrupt their adverse possession.”

This in my opinion is sufficient, to dispose of the point adversely to the appellant, if we can assume that 1st defendant was no party to the execution proceedings.

A greater part, however, of the argument before us has been centred on the second point viz., as to the effect of attachment, as interrupting adverse possession, there being no doubt, as already pointed out, that on the date of the suit, the period requisite to establish adverse possession had elapsed. It is said that there are two cases, neither of them reported in the authorised reports, on each side of the line. For the appellant it is frankly admitted that the case reported in Seetharami Reddi v. Venku Reddi is against his position. There, the learned Judges distinctly and in so many words lay down that attachment could not have the effect of arresting adverse possession, by strangers holding adversely, when the properties were attached by the plaintiffs, as belonging to certain of the defendants in the case, against whom the strangers were holding. It is said that the case in Pandiyan Pillai v. Vellayappa Rowther is diamatically opposed to this, and the head note certainly gives some colour to this view. The learned Judges however dispose of the case in another manner. The decision in Seetharami Reddi v. Venku Reddi was brought to their notice; but they merely remark:

“An old decision of this Court not reported in the authorised reports; namely, Seetharami Reddi v. Venku Reddi supports Mr. Devadoss.”

They preferred to dispose of the case on a different ground? namely:

“that a decision in a regular suit, instituted to contest the order in the claim proceedings, places the parties in status quo ante, either by vacating the order, made in the said execution proceedings, or by confirming it. The result is the plaintiff is directed not to interpose obstacles in carrying out the further steps, necessary to reap the fruits of the attachment. Both the parties are bound by that pronouncement; consequently no question of interruption of possession or of its continuance despite the attachment arises.”

So far from intending to overrule or disapprove of the decision in Seetharami Reddi v. Venku Reddi, it appears to me, from this last sentence, quoted from the judgment, that the learned Judges held that the question did not arise. In my opinion therefore, as far as authorities have been brought to our notice, the case in Seetharami Reddi v. Venku Reddi stands uncontradicted. It is a case that has stood over for 23 years, and it seems to me that it would be improper for us to decline to follow it, unless there was some very cogent reason for doing so.

Now, it has been constantly held that an adverse possession is a question of fact. It has been argued for the appellant that the nature of an attachment is such, that on an attachment taking place, the Court receives the properties into its custody, and what this means may be seen by the form of attachment given in Appendix E. Form 24 of the Code of Civil Procedure. It only directs abstenance from transferring or charging the property by gift, sale, or otherwise, during the continuance of the attachment. It certainly does not physically interrupt the possession of persons, already on the property and in my view, it cannot be said even theoretically to do so. If it were allowed to interrupt any possession, one can see that a wide door is open to fraud and oppression. The case in Vasudeo Atmaram Joshi v. Eknath Balakrishna Thite supports the appellant, That was a suit to establish the appellant's rights to sell the property in dispute, as that of the judgment-debtor's and it was held that the appellant must prove that on the date of the attachment, which was subsequently raised, the judgment-debtor, had a subsisting right to the property: and that the suit must therefore be tried, as if it were a suit for possession by the judgment-debtor. The learned Judges add “so regarded, if is not the case here of the judgment-debtor having been dispossessed, or having discontinued possession, while in possession of the property. The learned Judges there specifically rely on Harishankar Jebhai v. Naran Karsan where the critical date is taken to be that of the order of 11th August 1908, which directed the removal of the attachment. That date corresponds to 10th June, 1918, in the present case and is inclusive of the present point; and that date is more than 12 years, from 30th March 1906. An old case in Krishnama Rajah v. Narayanaswami Rajah, lays down that the effect of an attachment does not change in any way the possession of the property, so as to bring the case within the 12 years limitation.

A further point was taken, viz., that the suit as allowed by O. 21, R. 63, although called a suit, was in fact nothing but a continuation of the claim proceedings and the appellant relied on Krishnappa Chetty v. Abdul Khader Sahib. In that case the Privy Council decision in Phul Kumari v. Ghanshyam Misra was referred to; and in the opinion of Sadasiva Aiyar, J., such suits have not any of the essentials of original actions, but merely forms of appeal allowed by the Civil Procedure Code, to be brought in the guise of original suits.” The judgment of their Lordships has however been commented upon, by a Full Bench of this Court, in Ramaswami Chettiar v. Mallappa Reddiar where Wallis, C.J, said:

“The Privy Council, no doubt, referred in one place to the suit under Sect. 283 to establish the right of the unsuccessful party to the claim petition, as an action of appeal and to the plaint in such a suit, as a plaint for review of a summary decision; but this language must be read, with reference to the question before them.”

Oldfield, J., in the same case points out that all their Lordships were concerned with was the question of Court-fees, in connection with which the character of the relief asked for, by the plaintiff, would be decisive.

For these reasons, I am of opinion that attachment does not interrupt adverse possession, or rather possession, which is ripening into adverse possession. This second point also fails and we must give effect to the decision in Seetharami Reddi v. Venku Reddi above quoted. I agree with my learned brother that there being, in my opinion, good and sufficient authority against the proposition that adverse possession can be interrupted by attachment, there is no necessity for reference to a Fall Bench. Consequently the Second Appeal must be dismissed with costs.

K. S. D.Appeal dismissed.