Koshi, C.J:— The Plaintiffs in O.S No. 132/1117 on the file of the Kottayam District Court have preferred this appeal against the judgment and decree of that Court dated 6-11-1120, dismissing their suit. The dismissal was on the ground that under Section 40 of the CPC. Travancore (Act 8 of 1100) the suit was not maintainable. Section 40 of the Travancore CPC corresponds to Section 47 of the CPC. Act 5 of 1908.

2. In O.S 70/1088 on the file of the Kanjirappally District Munsiff's Court, Defendant 1 obtained a money decree against one Narayana Panicker on 19-4-1088 and in execution thereof attached certain properties as belonging to the judgment-debtor, brought the attached properties to sale and himself purchased them. The attachment was on 5-1-1104, the sale on 13-8-1104 and the confirmation thereof on 1-10-1104. On 17-9-1107 the decree-holder-purchaser, i.e, defendant 1, applied for delivery and pending that application Narayana Panicker died on 14-1-1103. Defendant 1 sought to implead the present plaintiffs, who were his children as parties to that proceedings in place of their deceased father and the Court made them “additional defendants”. Plaintiffs 1 and 2 here were “additional defendants” 2 and 4 respectively there and on 25-4-1108 they filed C.M.P Nos. 4334 and 4365 opposing deliver?. They set up an independent title to the property covered by the sale certificate in themselves and the other children of Narayana Panicker and sought to impugn the validity of the execution sale among other things on the ground of fraud as well.

3. Narayana Panicker was the Karnavan of a Nair Tarwad. In execution of the decree in O.S 70/1088 Defendant 1 first attached certain properties of the tarwad and some junior members raised objection to the attachment. The execution Court upheld their objection and the attachment was released.

4. After that Narayana Panicker brought a suit in O.S 103/1102 on the file of the Kottayam District Court for partition of the tarwad properties A preliminary partition decree was passed in that suit on 30-1-1103 & almost immediately, on 11-2-1103, he executed a gift deed in favour of his children under which he gave share in the tarwad properties to them. The final decree in the partition suit was passed on 21-5-1104 and under it Narayana Panicker's share was divided by metes and bounds and the same was delivered to the donees, his children.

5. According to the plaintiffs they obtained delivery on 3-7-1105. It would appear that some of the properties comprised in Narayana Panicker's share were afterwards exchanged for portions of the properties that remained undivided among the remaining members of his tarwad. (See Ex. F. dated 12-8-1107). The properties. Defendant 1 purchased in execution of the decree in O.S 70/1088, form part of the properties the plaintiffs claim to have been delivered to them under the final decree in the partition suit and the subsequent exchange arrangement. It was the title so claimed that Plaintiffs 1 and 2 put forward in C.M.P Nos. 4364 and 4365 before the Kanjirappally District Munsiff's Court in answer to the application of Defendant 1 for delivery pursuant to the sale certificate granted to him by that Court.

6. Ex. J, the order the District Munsiff of Kanjirappally passed overruling the opposition to the delivery, snows that besides putting forward their title to the properties sold in O.S 70 plaintiffs 1 and 2 also attacked the validity of the execution proceedings and the sale held in that case. The Court however held that the execution sale was valid and that the gift deed in favour of the plaintiffs was sham, not intended to take effect. According to the learned District Munsiff when the attachment in O.S 70/1083 was effected Narayana Panicker was in possession of the attached properties and the subsequent delivery to the plaintiffs pursuant to the final decree in the partition suit was fraudulent and collusive and with a view to defeat Narayana Panicker's creditor.

7. The order (Ex. J) dismissing the objection petitions and allowing delivery of the properties to Defendant 1 was passed on 17-11-1110. Plaintiffs 1 and 2 took that order in appeal before the Kottayam District Court in A.S No. 94/1111, but on 6-6-1112 that Court dismissed the appeal for non-prosecution. The attempt to restore the appeal to the file was unsuccessful. C.M.P No. 2596 of 1112 filed in that behalf was dismissed by the District Court on 6-3-1115 on the ground that no sufficient cause was shown for restoration. That order was unsuccessfully appealed against to the High Court in C.M.A No. 120/1115. On 20-12-1116 the High Court confirmed the lower Court's order and dismissed the appeal.

8. The present suit asking, ‘inter alia’, for setting aside the order dated 17-11-1110 of the Kanjirappally District plaintiff's Court negativing the plaintiff's claim to the properties sold in execution of that decree and for a declaration that the decree and the execution proceedings were in-valid and inoperative against the plaintiffs and for their annulment was brought on 30-11-1117, within one year of the High Court's order dismissing C.M.A No. 120/1113.

9. Defendant 1 had in the meanwhile transferred his rights under the sale certificate to Defendant 2 and she in her turn sold her interests in some of the items to Defendants 3 and 4. The plaintiffs made the tenants who were in possession of the various items comprised in the sale certificate granted to Defendant 1 also parties to the suit. Defendants 2, 3 and some tenants-defendants contested the suit. The trial commenced in due course, but after the examination of two witnesses for the plaintiffs, at the instance of some of the contesting defendants, arguments were heard on certain preliminary issues (issues 1 to 4) raised in the suit. As the findings on these preliminary issues happened to be in favour of the defendants the learned District Judge dismissed the suit with costs.

10. The main ground of the decision is that Section 40 of the CPC (Travancore) precluded the plaintiffs from bringing a fresh suit to cancel the order passed in the proceedings for delivery. It was held that the decision arrived at in that proceedings was conclusive of the rights of the parties as to the title to the properties covered by the execution sale in O.S 70/1088. This view point is called in question in this appeal.

11. The appeal first came up for hearing before a Division Bench of which one of us was a member and that Bench considered that the disposal of the appeal involved in the decision in (sic) several intricate questions of the law of procedure about which there was considerable divergence of judicial opinion. That Bench therefore directed the case to be heard by a Full Bench and in so doing passed the following order:

“The questions on which definite views have to be taken for a proper disposal of this case are:

(1) Can a decree-holder-auction-purchaser be considered as a “party” to the suit for the purpose of Section 47 of the CPC 1908?

(2) Can questions relating to the delivery of possession of property sold in execution be considered as relating to “the execution” discharge or satisfaction of the decree” within the meaning of the said section? and

(3) Does the section compel the legal representative of a deceased judgment-debtor to raise the contentions available to him in his own individual capacity, as for example, a contention to the effect that the property sold in execution is his own and was not that of the judgment-debtor?

In view of the conflict of opinion on these points (see Mulla's Commentary to Section 47 of the CPC, 1908, in which the divergent views are summarised). We refer the appeal for disposal to a Full Bench of this Court.”

12. When this Bench heard the appeal it was found that decisions on the above points of conflict were unnecessary for its disposal. C.M.P Nos. 4361 and 4365 (1108) in O.S 70/1083 purport to have been filed under Section 40 and Rr. 56(1) and G4 of O. 21 of the CPC (Travancore). Section 40, as noticed earlier, corresponds to Section 47 of the CPC 1303. Provisions corresponding to Rr. 55(1) and 94 of O. 21 of the Travancore CPC are Rr. 58(1) and 97 of O. 21 of Act 5 of 1908. Rule 56(1) had obviously no application to the case as the objections Plaintiffs 1 and 2 raised to the delivery came after the sale. The objections, therefore, fell to be decided either under Section 40 or under O. 21 R. 94 of the Travancore CPC

13. If the questions raised by the objection petition and the counter which the decree-holder-purchaser filed in answer thereto, are considered to be questions arising between the parties to the suit in which the decree was passed or their representatives and as relating to the execution, discharge or satisfaction of the decree, they had necessarily to be decided in that proceeding itself and not by a separate suit.

14. The order the Kanjirappaliy District Munsif passed in the proceedings on 17-11-1110 was appealed against to the District Court and that appeal was dismissed. Attempts made thereafter to have the appeal restored to the file were unsuccessful and the decision of the appellate Court therefore became final. If the true view be that the disputes between the decree-holder-purchaser on the one hand and the present plaintiffs on the ether, fell within the purview of Section 40 of the CPC a fresh suit to set aside that order or to re-agitate the questions dealt Page: 54with there will not lie. The terms of S. 40 are peremptory, and it states that all questions falling within its scope shall be determined by the execution Court and not by a separate suit. The position is far too elementary and Mr. Kalatbil Velayudhan Nair, who appeared before us on behalf of the appellants, did not demur to it. Doubts exist only as to whether the proceedings fell under S. 40. Questions (1) and (2) raised by the Division Bench deal with that matter, but it is unnecessary to answer these questions as the fate of the appeal would not be any the different even if the Court takes the alternative view.

15. We shall now examine what result would follow if we take the alternative view that the proceedings fell under R. 94 of O. 21. For that the “additional defendants” brought on the record of the proceedings for delivery after the death of Narayana Panicker have to be treated as strangers to the decree and their petitions as obstruction to the delivery of properties sold by the Court and the decree-holder-purchaser's counter as one calculated to remove such obstruction. If the proceedings did not fall under S. 40, it can only be treated in the above manner. It is impossible to give a different legal colour to that proceedings than the one or the other indicated now.

16. As resistance to the delivery of possession, the proceedings must be deemed to be governed by Rr. 94 to 100 of O. 21 of the Travancore CPC corresponding to Rr. 97 to 103 of the Indian Code. Rule 100 (Rule 103 of the Indian Code) enacts that any party not being a judgment-debtor against whom an order is made under Rr. 95 or 96 or R. 98 may institute a suit 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. The main contention of the learned counsel for the appellants was that the present was such a suit.

17. Article 8 of the Travancore Limitation Act, 1100, corresponding to Article 11-A of the Indian Limitation Act, 1908, prescribes a period of one year from the date of the order for a suit by a person against whom an order has been made under the Code of Civil Procedure upon an application for the possession of immovable property by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of that property in the delivery of possession thereof to the purchaser, to establish the right which he claims to the present possession of the property comprised in the order.

18. The order, as we have seen, was on 17-11-1110. This suit was brought only on 30-11-1117. ‘Prima facie’, as a suit to set aside the order, it was clearly barred by limitation. We have noticed that the appeal brought against the order (A.S 94/1111) was dismissed on 6-6-1112. Even if that date be deemed to be the ‘terminus a quo’ for the action, it is equally barred.

19. Mr. Velayudhan Nair however contended that the date on which the High Court dismissed C.M.A 120/1115, viz., 20-12-1116, was the date of the commencement of the cause of action for the suit. If this contention is accepted the suit was brought clearly well within time; but it is impossible to accede to the contention. No order mentioned in R. 100 is appealable under the Code of Civil Procedure and it is well settled on authorities and for a suit under the concerned Article of the Limitation Act, time runs from the date of the order of the execution court and not from the date of the order passed on an in fructuous and incompetent appeal or revision. — ‘Dayaram v. Govardhandas’, 28 Bom 458 (A); ‘S.R.M.M.A Firm v. Maung Po Saung’, AIR 1929 Rang 297 (B); and — ‘Narayan v. Hari Ganesh’, AIR 1930 Bom 505 (C). Proceedings contrary to a clearly expressed provision of law cannot be considered as extending the period of limitation prescribed by the article. In — ‘Vemigopal Mudali v. Venkatasubbiah Chetty’, AIR 1916 Mad 833 (D), it was no doubt held that for a like suit against the decision in a letters patent appeal against a claim order made by a learned Single Judge of the High Court time commenced to run from the date of the appellate order but the fact that the appeal was a competent one has well been emphasised in the judgment. See — ‘Laxmandas v. Chunnilal’, AIR 1931 Nag 17 at p. 18 (column 2)(E).

20. Treated as an order in the obstruction proceedings it was not appealable & it cannot even be held that limitation commenced to run only from the date of the dismissal of A.S 94 of 1111 (6-6-1112). A ‘fortiori’, the date of the order of the High Court dismissing C.M.A 120/1115 cannot be taken to be the starting point of limitation in this case. Rustomji's Law of Limitation (1938) 5th Edition, Volume 1, page 588, commentaries under the heading “Commencement of Limitation” may usefully be referred to in this connection. The word “order” in the expression “the date of the order” in column 3 of the Article-relates to the order mentioned in column 1. It cannot apply to the date of the order in a collateral proceeding arising as an offshoot of the main proceeding. By way of analogy the decision in — ‘Ithakin Ithaku v. Bramadathan’, AIR 1950 Trav-C. 80 (F); and — ‘Bhawanipore Banking Corporation Ltd. v. Guni Shankar’, AIR 1950 SC 6 (G), may usefully be cited here.

21. Mr. Velayudhan Nair further contended, that in case the date of the District Munsiff's order was the date for the commencement of limitation, the time spent in prosecuting the appeal to the District Court and that spent in the District Court and the High Court to get the appeal restored to the file, should be excluded under the provisions of Section 14 of the Limitation Act. The decision in ‘AIR 1929 Rang 297 (B)’, and — ‘Narayan Ambaji v. Hari Ganesh’, (C), earlier show that a proceeding contrary to a clearly expressed provision of law cannot be regarded as prosecuting another civil proceeding “in good faith” within the meaning of S. 14. Further, “defect of jurisdiction” in S. 14 means a defect in the particular Court where the former proceedings were instituted and not an inability shared by that Court in common with all other Courts to entertain the proceedings. In other words, the section applies if the proceedings are capable of being sustained in the sense of being granted in conformity with law by some Court and does not make an allowance for time spent in prosecuting Page: 55a proceeding which the law does not permit any Court whatever to grant. “Defect of jurisdiction” does not cover such mistake as the prosecution of an appeal which does not lie at all in any Court. Proceedings to fall under S. 14 must be such as one recognised by law as legal in their initiation though the party earned the proceeding to a wrong Court. See — ‘Shaodhari Ram v. Gupteswar Pathak’ AIR 1924 Pat 716 (H); and ‘Rustomji Volume 1 Page 245’, commentaries on S. 14 under the heading “Defect of Jurisdiction.”

22. When confronted with the difficulty, that treating the proceedings before the Kanjirappally District Munsiff which resulted in the order Ex. J, as obstruction to delivery of property covered by a court sale by persons who were strangers to the decree, the suit was clearly barred by limitation, the learned counsel for the appellants argued that the suit was one not only to set aside the District Munsiff's order, Ex. J, but also one to annul the decree and the execution sale in O.S 70/1088 on the ground of fraud. This contention is inconsistent with the attempt to invoke the aid of Section 14 of the Limitation Act for exclusion of time. Whatever that be, reading the plaint as a whole and looking at para. 28 thereof, where it is stated that the cause of action arose on 16-12-1116 (the data on which the High Court dismissed C.M.A 120/1115), it is difficult to accept the argument that besides the adverse decision against the plaintiffs the suit is based on other causes of action as well. No doubt the decree is attacked as one obtained on the basis of a false promissory note and the execution proceedings are impugned as fraudulent for various reasons. The decree cannot become invalid because the pronote sued upon was false. The question of the genuineness of the pronote was or must be deemed to have been pronounced upon by the court.

23. Acts of fraud seen mentioned in the plaint by way of impeaching the execution proceedings were set out in the petitions before the Kanjirappally District Munsiff, filed in 1108. That the execution proceedings were fraudulently and secretly conducted was one of the matters agitated in the prior proceedings and we fail to see how a suit brought in 1117, could escape the bar of limitation when the alleged fraudulent acts of Defendant 1 had come to the knowledge of the plaintiffs so long ago as 1108. There is no averment even in the plaint that any fresh fraudulent act came to the knowledge of the plaintiffs since then within such period as a suit founded on it and instituted on 30-11-1117 would be within time. This approach assumes that as legal heirs of Narayana Panicker the plaintiffs had ‘locus standi’ to impugn the sale.

24. We should not however be taken to countenance the view that discovery of further acts of fraud connected with the pale would give rise to a fresh cause of action. We refer to these aspects only to test the argument and to show that the plaint was never conceived as anything other than one to set aside the adverse decision in Ex. J, on grounds canvassed in that proceedings and not ‘de hors’ them. On the basis of the title derived from the gift deed, the final decree in the partition suit and the subsequent arrangement by way of exchange the plaintiffs resisted delivery, but the Court held that the plaintiffs had really no title to or possession of the properties and that the documents in their favour were all sham and mere paper arrangements. They ought to have brought the suit within one year of the adverse decision to establish their title and possession. The case in — ‘Kaleswar Mills Ltd. v. Govindaswami Naciker’, AIR 1946 Mad 76 (I), contains, if we may say so, a learned discussion of the principles to be borne in mind in dealing with cases of the present type. The judgment will well repay perusal. The present suit having been brought long after one year of the adverse decision it was rightly dismissed by the learned Judge below. We affirm that decision and dismiss the appeal with costs.

25. Appeal dismissed.