Lachmi Narain vs H. C. Martindell

Knox, Burkitt and Aikman, JJ. 1. The defendant, who is respondent to this second appeal, held a decree obtained from a Bent Court against ore Parmeshri Das. The decree was dated the 5th of November 1891. In execution of that decree a grove was attached and put up for sale. Some time after attachment, the appellant, Sahu Lachmi Naraia, put in an objection before the Rent Court executing the decree and claimed that the grove which had been attached was his own. The objection is not before us, but it has not been shown to us that the Rent Court did not, as it was bound to do, examine the objector or his agent. We assume, therefore, that the Rent Court did act according to law, and we know from the record that the 18th of November was fixed for the disposal of the objection. On the 18th of November the parties appeared. The objector stated that he had not had sufficient time to produce certain evidence which he wished to produce. He asked for an adjournment, and this case was adjourned until the 28th of November, with the warning that if he did not then produce his evidence, his claim would be dismissed. He did not appear on the 28th. The Court waited till the 29th, and again till the 30th, and then on the 30th, as he did not appear, his claim was rejected for want of prosecution. On the 23rd of January 1895, the present suit was instituted by the appellant, asking that the auction sale which had taken place in the interim might be declared ineffective and inoperative. Both the lower Courts have dismissed the suit as barred by the limitation rule set out in Clause (b) of Section 181 of the Rent Act. The plaintiff now in second appeal urges that the Courts below were wrong in holding the suit to be barred by limitation. He contends that there was no adjudication upon his claim under Section 179 of the Rent Act, and that, therefore, limitation cannot be deemed to run from the date of the order of the 30th November 1893. In support of his contention he cites the case of Kallu Mal v. Brown I.L.R. 3 All. 504. 2. The point raised by this contention is one which in our opinion is fully covered by the precedent Sardhan Lal v. Ambiha Pershad L.R. 15 I.A. 123. In that case their Lordships of the Privy Council remarked that they did not know what had taken place before the Subordinate Judge who made the order, but they go on to observe that, whatever may have happened, "there was an order rejecting the claim brought. It was an order within the jurisdiction of the Court that made it." Their Lordships go on to point out: "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." The same remarks apply here. For cases like the present, Section 181, Clause (b), of the North-Western Provinces Rent Act, No. XII of 1881, supplies the limitation rule and dearly requires that a suit brought in the civil Court to set aside an order passed against an objector must be brought by that objector within one year from the date of the order if he seeks to establish his right to the property claimed by him in the Rent Court. Again we have the cases Khub Lal v. Sam Lochun Koer I.L.R. 17 Cal. 260; Kaminee Debia v. Issur Chnnder Roy Chowdhry 22 W.R. 39, and Sadut Ali v. Ram Dhone Misser 12 C.L.R. 43. These two latter cases are directly in point. 3. As regards the case cited on behalf of the appellant, the facts do not appear to be very fully stated. If it were the intention of the learned Judges who decided that case to lay down that, when an opportunity has been given to an objector to establish his claim and he fails to do so and his objection is thereupon disallowed, he can still bring the same claim after the expiry of the year prescribed by article 11, schedule ii, of the Indian Limitation Act, we should find ourselves unable to follow their decision. 4. In the present case the claimant came forward asserting his right. The burden of proof was upon him. He was given full opportunity of substantiating his right, but he failed to do so. The order passed was clearly an order adjudicating upon his claim within the meaning of Section 179 of the North-Western Provinces Rent Act, and was an adjudication by a competent Court upon such materials as were before it, and to it as such the limitation rule laid down in Clause (b) of Section 181 clearly applies. The suit was properly held to be barred. We dismiss this appeal with costs.