1. This is an application under Section 115 of the CPC. The facts in short are that there was a decree against the deceased husband of the petitioner. The property in suit was attached in November 1938. In December 1933, the petitioner made a claim to say that the property did not belong to her husband but belonged to herself. On 3rd February 1934, her application was dismissed for default. Thereafter, on 21st March 1934, the property was sold in auction and purchased by the opposite party. The sale was confirmed on 21st January 1934. Then the opposite party auction, purchaser applied under O. 21, R. 95 of the CPC on 31st May 1934 for delivery of possession to him. The Court issued a writ for delivery of possession. Possession could not be given on account of resistance by the petitioner. Thereupon on 15th June 1934, the opposite party made an application under O. 21, R. 97. That application was dismissed for default on 10th November 1934. Within three years thereof, namely on 10th April 1937, the auction purchaser made a fresh application for delivery of possession under O. 21, R. 95. On this occasion too, the delivery was resisted by the petitioner. Thereupon the opposite party made an application on 13th May 1937 under O. 21, R. 97. The Munsif on bearing the parties has allowed the application.
2. It is urged for the petitioner that the opposite party was not entitled to file a second application under O. 21, R. 95 when the first application had failed. No authority is cited for this wide proposition that the auction-purchaser is limited to one application under R. 95 of O. 21, that if that application fails, he is not entitled under the law to make a second application under R. 95. On a plain reading of the section, such a proposition cannot be accepted.
3. It has been held in numerous cases that a second application may be made if it is otherwise within time.
4. The nest point is that assuming that the second application under R. 95 was maintainable, the application made on 13th May 1937 under R. 97 was barred by limitation, inasmuch as the second resistance was made by the same petitioner who had made the first resistance on 3rd June 1934 and the limitation of one month will run from 3rd June 1934. This is opposed on the other side. Both sides have quoted numerous cases but on a plain reading of Article 167, Limitation Act, it appears that the period of 30 days is to be counted from the date of the resistance or obstruction of which complaint is made. In this case, complaint was made of the resistance made on 24th April 1937 and it being within one month of that act of resistance, the application was within time. The rule is therefore discharged with costs, hearing-fee one gold mohur.
R.M/R.K
5. Rule discharged.