Jamuna Sonar vs Atma Ram Ojha and Others

Varma, J.—This second appeal arises out of a suit which was dismissed by the Courts below on the ground that it was barred by limitation under Article 11, Limitation Act. In the Courts below the suit was mainly contested by defendant 1, liquidator of the Friends Co-operative Society at Dumraon. This defendant filed a certificate against defendant 4 and had it served on him on 30th June 1930, u/s 7, Bihar and Orissa Public Demands Recovery Act, 1914. Defendants second party obtained a money decree against defendant 4 and other defendants (defendants third party) who form a joint Mitakshara family. In execution of this money decree, defendant 1 filed an objection laying claim to the property sought to be attached and sold, on the strength of the certificate under which notice was issued u/s 7 of the Act on 30th June 1930 and it was ordered that the sale in execution of the money decree would be held subject to the charge under the certificate. Execution of the money decree was levied on 8th December 1930, the sale proclamation was issued on 18th February 1931 and the plaintiff purchased the property on 8th April 1931.

After this purchase the plaintiff filed an objection on 25th May 1931, in the certificate proceeding that the certificate debtor (defendants) had no interest left in him in the property attached, but the objection was rejected and the property specified in Schedule 2 was sold to defendant 1 on 4th June 1931, and delivery of possession was given of it on 13th September 1931. The sale held under the money decree on 8th April 1931 was confirmed, in respect of 3 out of the 4 houses involved on 5th August 1931, and a sale certificate was granted to the plaintiff on 2nd July 1932, and delivery of possession was given to the plaintiff on 24th January 1933. Resistance was offered to the plaintiff in taking possession of the property, and on 7th March 1933 he filed a petition under Order 21, Rule 97, Civil P.C. The objection was allowed and the plaintiff was directed to take out a fresh dakhaldehani in respect of 15/16th share of the houses and to be in possession of it jointly with defendant 1, but this order of the Munsif was ultimately set aside'' by the High Court on 9th October 1933. The plaintiff purchaser under the money decree thus instituted the present suit for declaration of his title to and confirmation of possession over the entire property purchased by him at the execution sale on 8th April 1931, and prayed that, if it were held that defendant I had any interest in the property, he might be put in possession jointly with defendant 1.

The Court below has dismissed the suit of the appellant on the ground that it was barred by limitation not having been filed within one year from 25th May 1931 on which date his objection before the Certificate Officer was rejected, as contemplated by Section 25, Public Demands Recovery Act, and Article 11, Limitation Act. Mr. Mahabir Prasad, appearing on behalf of the appellant, urges that on 8th April 1931 defendant 1 had no interest in the property involved and therefore his application to the Certificate Officer resulting in the order of 25th May 1931 was misconceived, as Section 22 of the Act requires that the claimant or objector to a certificate proceeding must adduce evidence to show that, where immovable property is concerned, at the date of the service of the notice u/s 7 he had some interest in, or was possessed of, the property attached. He has referred to the decision in Atarmoyi Dasi v. Ramananda Sen A.I.R (1923) Cal. 601 where a person in possession filed an application under Order 21, Rule 100, Civil P.C. for recovery of possession of the property from one who had obtained symbolical possession of that property after purchase in execution of a decree, and the application was dismissed on the ground that his possession had not been disturbed.

It was held that the application was one not within the purview of Order 21, Rule 100, and that it was only when possession is actually disturbed that time begins to run against the person dispossessed, and failure to bring a suit for establishment of title and recovery of possession within a year of the order passed on the application under Order 21, Rule 100 as contemplated by Article 11-A, Limitation Act, did not bar the suit by limitation. I am afraid this case does not help Mr. Mahabir Prosad, because, in my opinion, what this decision lays down is that when there is no disturbance of possession an application under Order 21, Rule 100 would not lie. Mr. Mahabir Prasad then refers to the decision in Muthiah Chetti v. Palaniappa Chetty A.I.R (1928) P.C. 139. There a mortgagee filed a suit after the period of limits on prescribed by Article 11. He had applied under Order 21, Rule 58 in the belief that there was an order of attachment. He filed the suit under" Order 21, Rule 63 beyond the period of limitation. Their Lordships referred to Article 11, Limitation Act, and said that without attachment there could not be an application under Order 21, Rule 58, and that as there was no attachment, the petition could not be considered to be a petition under Order 21, Rule 58. But here we have got a sale proclamation issued by the Certificate Officer and it was on an application against that sale proclamation that the order of 25th May 1931 was filed. The sale proclamation of the Certificate Officer was issued on 20th March 1931, and the objection was filed on 2nd June 1931, and the order of 25th May 1931 was passed against the plaintiff. That order must be held to be an order u/s 24, Public Demands Recovery Act, and covered by Article 11, Limitation Act.

Mr. D.N. Varma, appearing on behalf of the respondent, has drawn our attention to the case in Subedar Singh v. Ramprit Pande A.I.R (1929) Pat. 116 where even when a petition under Order 21, Rule 58 was dismissed on the ground that the petition was not maintainable u/s 170, Bengal Tenancy Act, it was held that that was an order under Order 21, Rule 58 for the purpose of a suit under Order 21, Rule 63, and was governed by Article 11, Limitation Act. I would therefore hold that the order, dated 25th May 1931, was an order u/s 24, Public Demands Recovery Act, and the suit is barred by limitation as held by the Courts below. I would therefore dismiss the appeal but under the circumstances of the case without costs.

Agarwala J.

I agree.