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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Norris
  • Ghose, JJ.
Acts
  • Art. 11 of the 2nd Schedule of the Indian Limitation Act (XV of 1877),
  • Code, the Art. 11 of the Limitation Act
  • Art. 15 of the Limitation Act of 1871,
  • CIVIL PROCEDURE CODE
  • Art. 11 of the Limitation Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Norris
  • Ghose, JJ.
Acts
  • Art. 11 of the 2nd Schedule of the Indian Limitation Act (XV of 1877),
  • Code, the Art. 11 of the Limitation Act
  • Art. 15 of the Limitation Act of 1871,
  • CIVIL PROCEDURE CODE
  • Art. 11 of the Limitation Act
See more information ...
Smart Summary

Court Opinion Summary — Ghose, J.

Factual and Procedural Background

The Plaintiff purchased certain lands from Balaki Mahatan on 14 June 1888, paid a valuable consideration and entered into possession. A decree had been obtained against Balaki Mahatan and, in execution of that decree, Defendant No. 1 attached the lands as Balaki's property. The Plaintiff preferred a petition of objection to the attachment but, due to illness, did not prosecute the petition and the petition of objection was struck off on 14 April 1890.

Despite the order of 14 April 1890, the Plaintiff continued in possession. Defendant No. 1 caused the property to be sold, purchased it himself, took out a writ for delivery of possession and dispossessed the Plaintiff on 25 Kartic 1298 F.S. (corresponding to 21 November 1890). The Plaintiff's cause of action is alleged to have arisen upon that dispossession. The present suit was instituted by the Plaintiff on 6 November 1891 to recover possession.

Defendant No. 1 pleaded limitation under Art. 11 of the 2nd Schedule of the Indian Limitation Act (XV of 1877), contending that the suit was not instituted within one year from 14 April 1890 (date the petition was disallowed), that the suit did not seek to set aside that order, and that the Plaintiff's purchase was not bona fide. Both Courts below overruled the limitation plea, found the Plaintiff's purchase bona fide, and decreed the suit. Defendant No. 1 appealed; on second appeal the sole point argued was limitation.

Legal Issues Presented

  1. Whether the order of 14 April 1890 (disallowing the Plaintiff's petition of objection) is an order passed under Sections 278 to 283 of the Code of Civil Procedure such that Article 11 of the Limitation Act (one-year limitation) applies.
  2. If the order is not an order under Sections 278–283, whether the Plaintiff's suit for possession is barred by limitation calculated from the date of the disallowance.
  3. Whether the lack of any investigation under Section 278 means the disallowance is merely striking the petition off the file (and therefore not conclusive under Section 283).

Arguments of the Parties

Defendant No. 1 (Appellant) — Principal Arguments

  • The order of 14 April 1890 disallowing the Plaintiff's claim falls within the scope of Sections 278–283 of the Code of Civil Procedure.
  • Because the order is an order under those sections, Article 11 of the Limitation Act applies and the Plaintiff's suit (not instituted within one year from 14 April 1890) is barred.
  • The suit could not be maintained because it did not seek to set aside the 14 April 1890 order; and the Plaintiff's purchase was not bona fide.

Plaintiff (Respondent) — Principal Contentions (as presented in the opinion)

  • The Plaintiff purchased the property for valuable consideration, entered into possession and continued in possession despite the order of 14 April 1890.
  • The petition of objection was struck off because the Plaintiff (claimant) did not appear — due to illness — and therefore there was no investigation under Section 278; the order should not be treated as one under Sections 278–283 that would trigger Article 11.
  • The Plaintiff's cause of action arose only when he was actually dispossessed on 21 November 1890, and the suit was instituted on 6 November 1891.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Raja Bishen Perkash Narain Singh v. Babooa Misser One of the cases under the old Code (Sec. 246) illustrating differing approaches to orders affecting claims during execution. Placed in the first class of cases under the old Code; court notes these older cases are conflicting—some favour respondent, others appellant.
Lucklall Pria Bisia v. ??? and anr. Listed among cases under the old Code (Sec. 246). Included in the first class; cited to demonstrate conflict in authorities under the old Code.
Jugobundoo Bose v. Sachya Bisia Another old-Code decision cited among conflicting authorities. Identified as part of the first class of old-Code cases showing inconsistent rulings.
Gurudass Roy v. Sonamoni Dassi Old-Code case bearing on the treatment of claims in execution proceedings. Classified with other first-class cases; noted as part of the conflicting body of authorities.
Sreemunto Haja v. Tajooddin Old-Code precedent cited in the opinion. Placed among the first class illustrating differing outcomes under the old Code.
Kaminee Debia v. Issutchunder Roy Chowdry Old-Code case cited in the text. Part of the first-class grouping of conflicting old-Code decisions.
Mussamat Luchmi Koer v. Falteh Singh Old-Code precedent Mentioned among first-class cases; court observed division of authority.
Koylas Chunder Pal Chowdhury v. Preonath Case in the second class (orders under Sec. 246 after Act IX of 1871) addressing limitation and nature of suit. Representative of the second class where courts held that the true nature of the suit governs limitation rather than automatic application of one-year limitation.
Bissesur Bhugui v. Murli Sahu Second-class authority on limitation after amendment by Act IX of 1871. Used to show precedents that the one-year rule may not apply if the suit's nature is different; cited as supporting the view that limitation depends on real character of suit.
Gopal Chunder Mitter v. Mohesh Bose Second-class case interpreting limitation post-Act IX of 1871. Cited as example where the courts held that Art. 15 (Limitation Act 1871) did not necessarily apply and limitation must be fixed by the suit's nature.
Gend Lall v. Denonaih Ram Tewari Another second-class authority on limitation and character of suit. Included to illustrate the second-class holdings that the proper limitation depends on the suit's real nature.
Kallu Mai v. Brown One of the third-class decisions under the present Civil Procedure Code. Grouped among decisions under the present Code that, with few exceptions, support the Respondent's position (i.e., that an order must involve an investigation to fall under Secs. 278–283).
Venkara v. Chinbasapa Third-class case under the current Code. Noted as part of the body of more recent cases under the present Code relevant to the issue of whether such orders are within Sections 278–283.
Sadul Ali v. Ram Chand Misser Third-class authority under the present Code. Listed among contemporary decisions that generally support the Respondent's stance.
Rash Behary Basak v. Budhun Chunder Singh Third-class precedent under the present Code. Included to show the weight of modern decisions on the question.
Chandra Bhusun Gangopadhya v. Ram Kanth Banerji Third-class case under the present Code. Cited among the recent cases considered; characterized as supporting the Respondent's view (save for noted exceptions).
Sardhati Lall v. Ambika Petshad (Judicial Committee) Held that an order made under Sec. 280 (after investigation to the extent required) falls within Art. 11 (Limitation Act 1877); addressed whether Sec. 280 requires an investigation before an order can be made. The Court regarded the Judicial Committee's reasoning as authoritative and followed its view that there must be an investigation (though extent may vary) to make an order one under Sec. 280; used this decision to conclude the 14 April 1890 order was not under Secs. 278–283 because no investigation occurred.
I.L.R. 12 Cal. 108 Reported decision in which this Court adopted the view aligning with the Judicial Committee (i.e., that some investigation is required to bring an order under Sec. 280). Relied on by the Court as supporting the conclusion that an investigation must occur for the order to be within Secs. 278–283.
12 C.L.R. 43 A reported case noted as an exception among the third-class authorities. Identified as the one exception among the more recent cases; the Court noted it but relied on the weight of the other authorities and the Judicial Committee.
3 All. 504 (Allahabad High Court) An Allahabad decision adopting the same view as I.L.R. 12 Cal. 108 and the Judicial Committee's approach. Referred to as consistent with the view that investigation is required; cited as further support for the Court's approach.

Court's Reasoning and Analysis

The Court began by considering the text of the order of 14 April 1890: "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." To decide whether this order fell within the ambit of Sections 278–283 of the Code (and thus triggered Article 11 of the Limitation Act), the Court examined those sections.

Sections 278–281, as cited, contemplate an "investigation of the claim" (Sec. 278), require the claimant to adduce evidence of interest or possession at the date of attachment (Sec. 279), and provide for either the release of property if it was not in the judgment-debtor's possession (Sec. 280) or disallowance if the Court is satisfied it was in the judgment-debtor's possession (Sec. 281). Section 283 allows the party against whom such an order is passed to institute a suit to establish the right claimed, but states that the order is conclusive subject to the result of such a suit.

The Court found it undisputed that on 14 April 1890 no investigation into the merits of the Plaintiff's claim occurred; rather, the petition was simply disallowed because the claimant failed to appear. Given that the statutory scheme contemplates a substantive investigation (at least to some degree), the Court concluded that an order made without any investigation is not an order "under secs. 280, 281 or 282" and therefore not within the class of orders to which Section 283's conclusive effect (and Article 11's one-year limitation for suits by parties affected by such orders) would apply.

The Court reviewed prior authorities and grouped them into three classes: (1) decisions under the old Code (Sec. 246) which were conflicting; (2) decisions under Sec. 246 after Act IX of 1871, in which courts held that the true nature of the suit could determine the applicable limitation; and (3) decisions under the present Civil Procedure Code which, with limited exceptions, supported the view that an order must involve some investigation to fall under Sections 278–283.

The Judicial Committee's recent decision in Sardhati Lall v. Ambika Petshad was discussed at length. The Judicial Committee held that an order could properly be regarded as being under Sec. 280 (and therefore within Art. 11) even if the extent of the investigation varied; their Lordships observed that the Code did not prescribe the precise extent of the investigation and that an order made within the jurisdiction of the Court could be one under Sec. 280. The Court here interpreted that decision as indicating that there must be an investigation (the extent of which may vary) to render an order an order under Sec. 280.

Applying these principles, and noting there had been no investigation at all in the present case, the Court held that the 14 April 1890 order should not be regarded as an order under Section 281 (or the related sections). The order was instead properly viewed as striking the petition from the file for failure to proceed. The Court also observed that there was no determination as to who was in possession at the time of attachment, as Sec. 281 contemplates. Moreover, the lower courts had found that the Plaintiff continued in possession until dispossession by Defendant No. 1 — raising doubt whether the 14 April 1890 order alone gave rise to a cause of action; instead, the dispossession (21 November 1890) is the event that clearly furnished a cause of action.

Holding and Implications

Appeal dismissed.

Direct effect on the parties: the Court affirmed the decision of the Courts below which overruled the limitation plea, found the Plaintiff's purchase bona fide and that he remained in possession until dispossessed, and decreed the suit in the Plaintiff's favour. The appeal by Defendant No. 1 was therefore dismissed.

Broader implications: the opinion follows the Judicial Committee's view (and certain recent domestic decisions) that an order under Sections 278–281 of the Code will be within those sections (and attract Article 11 limitation) only if some investigation of the claimant's objection/claim has taken place; where no investigation occurs and a petition is merely struck off for want of prosecution, the one-year limitation under Article 11 does not necessarily apply. The opinion does not purport to lay down a new, sweeping precedent beyond applying these existing authorities to the facts of the case.

(Reported H.N.M)
Appeal dismissed.
Show full summary ...

    Kallar Singh v. Toril Mahton

    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.

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    Comments

    Kallar Singh v. Toril Mahton
    (Jan 24, 1895)