Ghose, J.:— This was a suit to recover possession of certain lands on the strength of a purchase from one Balaki Mahatan (Defendant, 2nd party) on the 14th June 1888. The Plaintiff's case is that he purchased the property for a valuable consideration and entered into possession thereof, but that the Defendant No. 1, in execution of a decree against Balaki Mahatan, attached the lands as his property, that he (the Plaintiff) preferred an objection, but that, on account of illness, he was unable to prosecute his claim, the result being that the petition of objection was struck off on the 14th April 1890. He further states that notwithstanding this order of the 14th April 1890, he continued in possession of the property, but that the Defendant No. 1 caused it to be sold and having purchased it himself, took out a writ for delivery of possession, and dispossessed him on-the 25th Kartic 1298, F.S, corresponding to 21st November 1890, and that thereupon his (the. Plaintiff's) cause of action arose. The suit was instituted on the 6th November 1891.
The defence to the action was that it was barred by limitation under Art. 11 of the 2nd Schedule of the Indian Limitation Act (XV of 1877), the suit having not been instituted within one year from the date 14th April 1890 when the petition of objection of the Plaintiff was disallowed; that the suit could not be maintained, as it did not ask for the setting aside of the order of the 14th April 1890; and that the alleged purchase of the Plaintiff was not bonâ fide.
Both the Courts below have overruled the plea of limitation, upon the ground, that there was no investigation of the claim preferred by the Plaintiff as provided by Sec. 278 of the Code of Civil Procedure, and therefore, the limitation of one year does not apply; and they have held that the purchase of the Plaintiff was bonâ fide, and that he obtained possession thereunder and continued to be in such possession until he was dispossessed by the Defendant No. 1, and they have accordingly decreed the suit.
On second appeal by the Defendant No. 1 the only point that has been raised before us, on his behalf, is as regards limitation, it being contended by the learned Vakil that the order of the 14th April 1890, disallowing the claim, falls within he scope of Secs. 278 to 283 of the Code, and that the suit is therefore barred by one year's limitation prescribed by Art. 11 of the Limitation Act.
Various cases have been quoted before us by the learned Vakils on either side in support of their respective contentions. Some of these cases are, however, conflicting.
The order of the 14th April 1890 was as follows:—
“No appearance for the claimant decree-holders present.
“Ordered the claim be disallowed with costs. Costs of decree-holder with pleader's fee Rs. 2 be paid by claimant.”
In order to see whether this order is one which is contemplated by Art. 11 of the Limitation Act it will be necessary to refer to the sections of the Civil Procedure Code, which bear upon the matter.
Section 278 of the Code runs as follows:—
“If any claim be preferred to, or any objection be made to the attachment, of any property attached in execution of a decree, on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit.
“Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.
“If the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.”
The section clearly contemplates an “investigation of the claim.”
Sec. 279 provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.”
Sec. 280 says that “if upon the said investigation the Court is satisfied that for the reason stated in the claim or objection, such property was not, when attached, in the possession of the judgment-debtor or of some persons in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property but on account of or in trust for some other person, or partly on his own account and party on account of some other person, the Court shall pass an order for releasing the property wholly or to such extent as it thinks fit, from attachment.”
The determination which this section contemplates is as to who was in possession at the time of the attachment, the judgment-debtor or some other person.
Sec. 281 runs thus:— If the Court is satisfied that the property was at the time it was attached in possession of the judgment-debtor as his own property and not “on account of any other person or was in the possession of soma other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim.”
So that the Court should disallow the claim only when it is satisfied that the property was at the time of attachment in the possession of the judgment debtor.
Sec. 283 provides that “the party against whom an order under Sec. 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.”
Now, is the order of the 14th April 1890 an order “under secs. 280, 281 or 282?” If it is not, the Plaintiff was clearly not bound to institute a suit for the establishment of his title.
It is undisputed that the Court made no investigation whatever into the merits of the claim preferred by the Plaintiff, and no determination was come to as to whether the judgment debtor or some other person was in possession. What happened was that upon the attachment taking place, the Plaintiff simply put in a petition of objection, that he did not make his appearance on the day appointed, and the petition of claim was thereupon disallowed without any investigation.
If the sections to which we have referred clearly contemplate an investigation of the merits of the claim, it seems to us that the order of the 14th April 1890 was not an order which would be conclusive between the parties under Sec. 283 of the Code, and it is obvious that if the said order is not one falling under Secs. 278 to 283 of the Code, the Art. 11 of the Limitation Act can have no application; for it provides for a suit “by a person against whom an order is passed under Sec. 280, 281, 282 or 283 of the Code of Civil Procedure, to establish his right to, or to the present possession of, the property comprised in the order.”
We have already said that upon this question there are contradictory rulings.
There are three classes of cases. The first class relates to orders under Sec. 246 of the old Code (VIII of 1859), which was in substance, the same as the sections to which we have referred.
Among this class may be mentioned Raja Bishen Perkash Narain Singh v. Babooa Misser (16), Lucklall Pria Bisia v. ??? and anr. (17), Jugobundoo Bose v. Sachya Bisia (18), Gurudass Roy v. Sonamoni Dassi , Sreemunto Haja v. Tajooddin , Kaminee Debia v. Issutchunder Roy Chowdry (19), Mussamat Luchmi Koer v. Falteh Singh (20); Some of these cases favour the contention of the Respondent, while the others that of the Appellant.
The second class of cases also refer to orders under Sec. 246, but the suits, in which those orders were relied upon, were suits ??? after the passing of Act IX of 1871, which rescinded the last twelve words of sec. 246 of the old Code, viz.:—
“At any time within one year from the date of the order,” and provided by Art. 15, one year's limitation for altering or setting aside an order or decision of a Civil Court. To this class belong Koylas Chunder Pal Chowdhury v. Preonath , Bissesur Bhugui v. Murli Sahu , Gopal Chunder Mitter v. Mohesh Bose , and Gend Lall v. Denonaih Ram Tewari .
In these cases, it was held that the suit for declaration of the Plaintiff's title after an adverse order under Sec. 246 of the old Code was not necessarily a suit for setting aside the order of a Civil Court within the meaning of Art. 15 of the Limitation Act of 1871, and that the proper period of limitation depended upon the real nature of the suit itself, as provided by other articles of the Limitation Act; and that, therefore, the suit was not barred by the one year's limitation.
The last class of cases refers to orders, made under the present Civil Procedure Code. To this class belong Kallu Mai v. Brown , Venkara v. Chinbasapa , Sadul Ali v. Ram Chand Misser , Rash Behary Basak v. Budhun Chunder Singh and Chandra Bhusun Gangopadhya v. Ram Kanth Banerji .
These cases, with the exception of the one reported in 12 C.L.R 43, support more or less he Respondent; and the case in I.L.R 12 Cal. 108 in their favour, is the more recent in date. But there is another case, which is a very recent one. It is the case of Sardhati Lall v. Ambika Petshad decided by the Judicial Committee. In this case, in execution of a decree against a Mitakshara father certain property, which had been mortgaged to the creditor by the father, was attached, and a claim was preferred by the sons and wife of the judgment-debtor, upon the ground that the ancestral property of the family could not be attached and sold for his personal debts. The Court ordered that “the objected property should be released on the ground of its being ancestral property and that only the right of the partition of the judgment-debtor be sold.” The decree-holder then brought a regular suit to establish his right to sell the property and to get rid of the said order, and it was held that the suit was barred by Art. 11 of the Limitation Act of 1877, because the order in question was passed under Sec. 280 of the Code. It was contended before their Lordships that the order was not an order under that Section, and they observed as follows:—
“The other reason assigned is that Sec. 280 does not contemplate that any order shall be made until after an investigation, which is directed by Sec. 278 The answer to that is that in the first place we do not know what took place before the Subordinate Judge who made this order. It may have been that the parties, who were before him, agreed so far upon facts that he was enabled to deliver his opinion off-hand. But besides that, the Code does not prescribe the extent to which the investigation should go, and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. However that may be, (and their Lordships do not desire to pronounce any opinion as to the extent of the investigation, which is required under the Code), in this case the order was made; and it was an order within the jurisdiction of the Court that made it. It is not conclusive; a suit may be brought to claim the property, notwithstanding the order; but then the law of limitation says that the Plaintiff must be prompt in bringing his suit. The policy of the act evidently is to secure the speedy settlement of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought.”
As wo read this decision, the Judicial Committee was of opinion that there must be an investigation of the claim, whatever the extent of the investigation might be, so as to make the order an order under Sec. 280.
We think we ought to guide ourselves by the opinion, which the Judicial Committee has expressed, and which is the same view that was adopted by this Court in I.L.R 12 Cal. 108, and by the Allahabad High Court in 3 All. 504.
We think that there having been no investigation at all into the merits of the claim preferred by the Plaintiff, the order of the 14th April 1890 should not be regarded as an order under Section 281 of the Code. The order may well be viewed as an order striking off or removing the petition of claim from the file of the Court by reason of the claimant having declined to proceed on with such petition.
We might add, as already noticed, that there was no determination by the Court as to who was in possession of the property attached as provided by Sec. 281; and the Plaintiff has been found by the Courts below to have continued in possession, notwithstanding the order of the 14th April 1890, and to have been dispossessed by the Defendant when he took out writ for delivery of possession. It may well be doubted whether any cause of action in these circumstances was afforded to the Plaintiff by the order of the 14th April 1890, for it was only when he was subsequently dispossessed that the necessity for the institution of the present suit arose. For these reasons, we think that the Court below has arrived at a right conclusion the result being that this appeal is dismissed.
(Reported H.N.M)
Appeal dismissed.