Ayling, J.:— This is of the nature of a second appeal against an order of the District Munsif of Nadapuram directing restoration to respondents 1 to 8 of certain property, which he held to have been wrongly delivered to appellant under a decree of his Court. The so a question before us now is whether respondent's application was time barred; and this turns on whether Article 165, Sch. 1, Lim. Act, is applicable to the case. Respondents were defendants in the original suit and judgment-debtors under the decree and we are asked by their counsel to hold that Article 165 only applies to applications by other persons under O. 21, R. 100, and not to petitions by judgment-debtors under Section 47 of the CPC. On this point there is a conflict of rulings. In Abdul Karim v. Islamunnissa Bibi(1) the learned Judges held in a carefully considered judgment that applications of this kind by judgment-debtors were governed by Article 181, and not Article 165. In this view I fully concur: as also in the reasoning which supports it. On the other hand a Bench of this Court has held in Ratnam Ayyar v. Krishna Doss Vital Doss(2) that Article 165 applies; the judgment is in this respect of the briefest and assigns no reasons. With all respect I think this was wrong; but as it has never been overruled and is reported in the regular series I do not feel justified in refusing to follow it without a reference to a Full Bench. I would therefore refer to a Full Bench the question of whether Article 165, Sch. 1, Lim. Act, is applicable to applications by a judgment-debtor for restoration of immovable property in excess of what has been decreed.

Krishnan, J.:— This appeal against appellate order arises from an application by respondents 1 to 8 against the appellant, under Section 47 of the CPC, for recovering with mesne profits possession of certain properties alleged to have been wrongfully taken possession of by him in execution of the decree in Original Suit No. 762 of 1909 from their lessee respondent 9 who was defendant 15 in the case.

2. Respondents 1 to 8 are the legal representatives of one Ahmed Kutti who was defendant 10 in the suit. They had first put forward their present claim as a suit Original Suit No. 392 of 1913, but on objection being taken by the appellant it was converted into an application under S. 47, as they are the representatives of defendant 10 in Original Suit No. 762 of 1909. Both the lower Courts have held that they are entitled to the relief claimed by them as the decree in Original Suit No. 762 of 1909 did not include the properties in question and have directed the properties to be redelivered to them with mesne profits at Rs. 20 a year. Appellant's plea that the respondents' application was time barred under Article 165. Lim. Act having been made nearly 2 years and 11 months after possession was taken by him was overruled the lower Courts holding that the 3 years' rule of limitation applied, apparently under Article 181 though they do not say so expressly.

3. The appellant has again raised before us the same question of limitation. His learned counsel contends that Article 165 applies and relies upon the observation in the case in Ratnam Ayyar v. Krishna Doss Vital Doss, where the learned Judges say:

“There can be no doubt as held by the lower appellate Court that Article 165, Sch. 2, Lim. Act, is applicable to a case where the applicant is a party bound by the decree as well as where he is a stranger: see Vythilinga Muppanar v. Seethalakshmi Ammal(3), Appeal Against Appellate Order No. 25 of 1889 (unreported).”

4. That observation is no doubt directly in the appellants' favour but the question was recently considered by the Allahabad High Court in Abdul Karim v. Islamunnisa Bibi where the learned Judges held dissenting from the view taken in the Madras case, that Article 165 did not apply to no application by a judgment-debtor for restoration of immovable property seized by the decree-holder in excess of what had been decreed but Article 181 applied. With all respect to the learned Judges in the Madras cases I am inclined to think that the view expressed in the Allahabad case is correct and should be adopted. I fully agree with the reasons given by the learned Judges in that case and I need not repeat them. I would however add that if Article 165 should be read as applicable to an application like the present one under S. 47, it would be equally justifiable to apply it to a defendant who claims to recover by way of restitution proceedings immovable property taken by the decree-holder from him for he would also be a person dispossessed of immovable property applying under the Code of Civil Procedure, and disputing the right of the decree-holder to be put into possession. It has however always been held that Article 181 is applicable to such a case. Furthermore as Article 165 cannot by its terms apply to the recovery of movable property or of money taken by the decree-holder in excess of what he is entitled to under the decree the application of Article 165 to the recovery of immoveable property so taken will lead to the extraodinary postion that in the case of the latter the judgment-debtor will only have 30 days, whereas in the case of the former he will have 3 years, a result that the legislature can ??? have intended. The wording of Article 165 and its position in conjunction with Articles 166 and 167 would seem to indicate that it is properly applicable only to applications under O. 21, R. 100 of the CPC. I may also observe that when as in the present case a person dispossesses another of property not included in the decree it seems doubtful if the latter can be considered to be “a decree-holder” qua that property within the meaning of the article.

5. In Ratnam Ayyar v. Krishna Doss Vital Doss there is no discussion of the question before us as the learned Judges merely follow the unreported case. It would also seem as pointed out in Abdul Karim v. Islamunnissa Bibi, that the observation in it is in reality an obiter dictum, as the Judges were dealing with the case of a minor to whom they held no limitation applied. On examining the unreported case in Appeal Against Appellate Order No. 25 of 1889 [Vythilinga Muppnaar v. Seethalaaskmi Ammal]. I find it is no doubt a decision in point. But the judgment in it is based entirely on the absence of the words “other than a judgement-debtor” in the article. This is no doubt at first sight an important point, but I am inclined to think that it does not affect the consideration in favour of the opposite view.

6. It is only if the article can be applied to the case of a judgment-debtor, that the omission will be material. But, if, as I think, the article applies only to applications under R. 100, it was unnecessary and even incorrect to introduce an exception in favour of judgment-debtors into it when the rule is sufficient to exclude them as it does. The form of the article is thus quite consistent with my view. I therefore agree to the reference to the Full Bench proposed by my learned brother.

OPINION

Wallis, C.J:— The period of limitation prescribed by Articles 165 and 168 may be traced back to Sections 230 and 269 of the CPC 1859, which dealt only with obstructions by, and dispossessions of, persons other than the defendant. The provision in Section 230 was re-enacted as Article 158 (now 165) of the Lim. Act, 1871, as follows:

“Under the Code of Civil Procedure, by a person dispossessed of immovable property and disputing the right of the decree-holder to be put into possession.”

7. This, in my opinion, must be read as meaning

“disputing the right of the decree-holder to be put into possession under the decree.”

8. That question had been decided against the defendant in the suit itself, and it was not open to him to raise it again in execution. This shows that Article 158 was intended to apply only to a case covered by S. 230 of the Code, where a person other than the defendant had been dispossessed, and that is in accordance with the ordinary presumption that no substantial alteration is intended when a particular provision is transferred from one Statute to another. Article 158 of the Act of 1871 did not provide for applications by a decree-holder who had been resisted by third persons in taking possession under the decree, whereas Article 160 (now 167) dealt with complaints in the case of Court sales both by the purchaser and by persons dispossessed by him (S. 269 of the Code of 1859). In the Act of 1877, Article 158 was reproduced as Article 165 and amended by inserting after decree-holder the words “or purchaser at a sale in execution of a decree,” and Article 167 was amended by extending it to complaints of obstruction by decree-holders as well as by purchasers (a case not dealt with by the Act of 1871), and by making it applicable to applications complaining of dispossession, not only by auction purchasers, but also by decree-holders. Both these cases were however covered by Article 165 as amended, and the latter portion of this article was therefore not reproduced in Article 167 of the Act of 1908. In Appeal Against Appellate Order No. 25 of 1889 [Vythilinga Muppanar v. Seethalahshmi Ammal, which was followed in Ratnam Ayyar v. Krishna Doss Vital Doss, the learned Judges relied on the fact that Articles 165 and 167 do not in terms exclude the judgment-debtor, but their attention was not called to the fact that the articles were transferred from the Code of 1859 where the restriction was to be found. They further observed that:

“unless the articles referred severally to judgment-debtors as well as third parties, there would be tautology.”

9. There was however tautology in the Act of 1877 in either view and in the Act of 1908, Article 167 was amended so as to remove it. There is in my opinion nothing in these changes to show any intention of widening the scope of the article so as to make it applicable to defendants.

10. The decision in Ratnam Ayyar v. Krishna Doss Vital Doss having stood so long unquestioned in this Court and elsewhere I have felt great doubt as to whether we should not continue to follow it, having regard to the nature of the points decided, on the principle of stare decision. The legislature has however itself restricted the scope of Article 165 by restricting in the Code of 1908 applications by third parties under O. 21, R. 100, to applications with reference to property covered by the decree or sale in pursuance thereof, and the fact that this procedure is not now applicable to complaints by third parties of dispossession of property not covered by such decree or sale appears to me to afford an additional reason for excluding from the scope of the article similar complaints by defendants who, as I am satisfied, were never intended to be covered by it. I think moreover that the rights of defendants are sufficiently restricted by their being required to apply under S. 43 within the period limited by Article 181. Agreeing with the decision in Abdul Karim v. Islamunnissa Bibi I would overrule Ratnam Ayyar v. Krishna Doss Vital Doss and answer the question in the negative.

Ayling, J.:— I agree.

Sadasiva Aiyar, J.:— In this case, I shared with my Lord (if I may respectfully say so) the hesitation he felt in overruling the old decision in Ratnam Ayyar v. Krishna Doss Vital Doss. But I am convinced after regarding his opinion that decision is erroneous. As cases of wrong delivery of judgment-debtors' property in excess of that decreed are rare and as it is very unlikely that many titles could have been created arising from alienations of such property by decree-holders to purchasers who believed the title to have been perfected by the default of judgment-debtors to file their applications within the shorter period of limitation till now prevailing, and as most of even those titles would have been perfected by the lapse of three years since the dates of such alienations, I agree in the answer proposed by my Lord.

S.N/R.K

11. Reference answered.