Sheonandan Chowdhury v. Debi Lal Chowdhury

Das, J.:— After stating the facts of the case as set out above, proceeded as follows:—

The only question which we have to consider is whether the Courts below are right in holding that the suit is not barred by lapse of time. The suit is prima facie governed by Article 11A of the Limitation Act and the period of limitation provided in Article 11A is one year from the date of the order. The suit was obviously instituted in order to avoid the effect of the order passed on the 5th August, 1916. The suit itself was instituted on the 2nd October, 1920. Prima facie the suit is barred by limitation; but it was argued on behalf of the respondents that the order of the 5th August, 1916, is a nullity and that he is entitled to disregard that order and bring his suit within twelve years from the date he was dispossessed by the defendants. According to the learned Vakil Order IX, rule 4, is not applicable to a proceeding under Order XXI, rule 100, of the Code. He accordingly argues that the Court had no jurisdiction to restore the application which was presented under Order XXI, rule 100, after it had been dismissed for default. The learned Vakil maintains that, that being so, the order of the 5th August, 1916, allowing the claim of the defendants was without jurisdiction and null and void. The argument advanced on behalf of the respondents is supported by the decision of the Calcutta High Court in the case of Haricharan Ghosh v. Manmatha Nath Sen, but is negatived by the decision of this Court in Satya Narain v. Gobind. The learned Vakil argues before us that the decision in Satya Narain v. Gobind Sahay has been overruled by the decision of the Special Bench in the case of Bhubaneshwar Prasad Singh v. Tilakdhari Lal. According to the contention of the learned Vakil we are conclusively bound by the decision in the case of Bhubaneshwar Prasad Singh v. Tilakdhari Lal, and that we are bound to hold that Order IX, rule 4, is not applicable to a proceeding under Order XX, rule 100, of the Code.

It is admitted by Mr. Susil Madhab Mullick on behalf of the appellant that Order IX, rule 4, of the Code of Civil Procedure does not, of its own force, apply to a proceeding under Order XXI, rule 100; but he contends that he is entitled to apply Order IX, rule 4, to a proceeding under Order XXI, rule 100, by force of section 141 of the Code. Section 141 of the Code runs as follows:

“The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.”

In the case of Thakur Prashad v. Fakirullah, the Judicial Committee pointed out that the proceedings spoken of in section 141 of the Code include original matters in the nature of suits such as proceedings in probate, guardianships and so forth and that they do not include executions. It was also pointed out by the Judicial Committee that both from the Code itself and the provisions of the Limitation Act, the legislature contemplated that there might be a succession of applications for execution and that it was unlikely that the legislature should make Order IX, rule 4, applicable to an execution proceeding since it was open to the decree-holder to make a succession of applications for execution. I regard the decision of the Judicial Committee in Thakur Prashad v. Fakirullah as establishing that section 141 of the Code does not operate so as to make the provision of Order IX, rule 4, and call cognate provisions applicable to execution proceedings.

But this conclusion, in my opinion, does not decide the present case. The question which we have to consider is whether a proceeding under Order XXI, rule 100, is a proceeding in execution. As to this I have expressed my opinion very frequently to the effect that an application under Order XXI, rule 100, cannot be regarded as an application in execution. I have stated the reasons so fully in a recent case which came up before my learned brother and myself that I do not think it necessary to repeat them . The case of Haricharan Ghosh v. Manmatha Nath Sen does indeed support the arguments of the respondents but that case assumed, rather than decided, that an application under Order XXI, rule 100, is an application in an execution proceeding. The case of Haricharan Ghosh v. Manmatha Nath Sen is confessedly based on the decision of the Judicial Committee in the case to which I have referred; but all that the Judicial Committee decided is that the proceedings spoken of in section 141 of the Code include original matters in the nature of suits and that they do not include execution. The other ground upon which Haricharan Ghosh v. Manmatha Nath Sen is based is that the order in a proceeding under Order XXI, rule 100, is not conclusive, but is subject to the right of the person aggrieved to bring a suit; but it seems to me that the right to apply under Order XXI, rule 100, does not stand on the same footing as a right to maintain a suit, if the application under Order XXI, rule 100, is dismissed. All that the applicant has to establish in a proceeding under Order XXI, rule 100, is that he was possessed of the property on his own account or on account of some other person than the judgment-debtor; but if he is compelled to institute a suit he has to establish the right which he claims to the present possession of the property. The question in my opinion is not solved by a reference to the provision of Order XXI, rule 103, of the Code.

The question came up for decision in our Court in Satya Narain v. Gobind Sahay. Roe, J. in delivering the judgment of the Court very properly pointed out that all that was decided by the Judicial Committee in Thakur Prashad v. Fakirullah was that Order IX, rule 9, was not applicable to proceedings in execution and the learned Judge thought that the decision of the Judicial Committee did not support the conclusion that Order IX, rule 9, was not applicable to a proceeding under Order XXI, rule 100. The learned Judge pointed out that an application under Order XXI, rule 100, is in the nature of a summary suit and that in that view the provision of Order IX, rule 9, should apply to such an application. In my opinion, the case of Satya Narain v. Gobind Sahay was correctly decided and is binding on this Court. It was strongly pressed before us that Satya Narain v. Gobind Sahay has been overruled by the decision of the Special Bench in the case of Bhubaneshwar Prasad Singh v. Tilakdhari Lal; but I am unable to take the view that it was within the scope of the decision in the Special Bench case to overrule Satya Narain v. Gobind Sahay. What is actually decided in the Special Bench case is that Order IX, rule 9, does not apply to an application under Order XXI, rule 90, of the Code. No doubt the arguments employed by the learned Judges deciding the case of Bhubaneshwar Prasad Singh v. Tilakdhari Lal apply with equal force to an application under Order XXI, rule 100; but, though the decision itself is binding on me, I do not think that I ought to be compelled to accept that which logically follows from that decision as equally binding on me, especially as I consider that the decision in Bhubaneshwar Prasad Singh v. Tilakdhari Lal needs re-examination.

The whole problem is whether Order IX, rule 9, applies by force of section 141 to a proceeding under Order XXI, rule 100. Now an application under Order XXI, rule 100, is not an application in execution proceedings, but is an original matter in the nature of a suit, and in my opinion the decision of the Judicial Committee in the case cited is an authority for the proposition that Order IX, rule 4, would apply by force of section 141 to original matters in the nature of suits.

I am unable to look upon the order of the 5th August, 1916, as a nullity. That being so, the suit, which was instituted on the 2nd October, 1920, was clearly barred by limitation under the provision of Article 11A of the Limitation Act. I would accordingly allow the appeal, set aside the order passed by the learned Judge in the Court below, and restore the decree passed by the Court of first instance. The appellant is entitled to his costs throughout.

Adami, J.:— I agree.

Appeal allowed.