Ram Lochun Koer vs Khub Lal and Another

W. Comer Petheram, Knight, C.J. and Norris, J.—This is a suit by the plaintiff to recover possession of a fractional share in mouza Bishampur Sadbo, as having been sold and handed over to her by the owners on the 9th of March 1887. The defence upon which the present question arises is, that, after the sale to the plaintiff, the share of her vendor, including the share purchased by the plaintiff, was attached under a decree against the plaintiff''s vendor, and that thereupon the plaintiff preferred a claim to the share now in dispute u/s 278 of the Civil Procedure Code, and that claim was enquired into and rejected on the 6th of August 1887. The present suit was instituted on 7th August 1888, and the question which we have to determine is, whether this suit is barred by limitation.

In our opinion it is. Section 283 provides that the party against whom an order under Sections 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. And Article 11 of Schedule II of the Limitation Act prescribes one year as the period within which such suit may be brought.

It is contended, in the present case, that this being a suit to recover possession, it is not such a suit as is contemplated by Sections 278 to 283, and that the ordinary limitation for an action of ejectment applies. We think that this is not the case. Section 283 expressly provides that if the suit mentioned in that section is not brought, the order shall be conclusive; and it seems to us that the effect of this is, that the order gives the auction-purchaser a title as against the claimant, unless it is set aside by action, and an action for that purpose can only be brought within a year. In taking this view of the law, we are, we think, acting in the spirit of the decision of the Privy Council in the case of Sardhari Lal v. Ambika Pershad ILR Cal. 521 : L.R. 15 IndAp 123.

For these reasons we are of opinion that this appeal must be allowed, the decision of the Munsif restored, and the suit dismissed with costs in all the Courts.