Saithu Mohammed vs Abdul Khadar

Mathew, J.—The 8th defendant has filed this appeal against the decree in a suit to set aside a summary order. The 1st defendant died during the pendency of the suit, and the 8th defendant is one of the legal representatives of the 1st defendant. The property involved in this suit consists of an area of 95 cents in two survey numbers 147/24A and 147/24B. The property belonged to one Ayyappan Krishnan. He executed a usufructuary mortgage on 31-11-1088 in favour of Meera Unni, the father of the 1st defendant. Ext. C is the copy of the mortgage. It was for Rs. 1,470/-. One Kuruvilla Ouseph obtained a decree in S.C. S. 172/1088 against Ayyappan Krishnan and in execution of the decree attached the property and purchased the same in court auction on 26-12-1100. The auction-purchaser applied for delivery of the property. An obstruction was filed by Meera Unni, the mortgagee, to the delivery of the property. Therefore, on 23-7-1103 the auction-purchaser filed an application for removal of the obstruction. The court allowed that application and ordered delivery and the property was delivered on 4-12-1103. Meera Unni thereupon applied for redelivery of the property. Ext. U is that application and that was dismissed by Ext. W order on 4-3-1105. Thereafter Kuruvilla Ouseph entered into an agreement for sale of the property under Ext. VII to D.W. 5 and after the death of Kuruvilla Ouseph his heirs actually conveyed the property under Ext. VI to D.W. 15, who sold the same to one Ananda Pai, who in turn sold it to the 1st defendant under Ext. XIV on 24-6-1118.

A creditor of the mortgagee, Meera Unni, had filed a suit in O.S. 6/1092 against him and attached the right of Meera Unni in the property on 17-3-1100. Thereafter the decreeholder in that case proceeded to sell the right of Meera Unni in the property and it was sold on 7-7-1104. He applied for delivery of the property, and obtained delivery on 5-3-1122. The 1st defendant who was in possession of the property thereupon filed an application for redelivery of the property. That was allowed by the execution court by Ext. Z order passed on 8-1-1949. The revision filed against that order was dismissed by Ext. AA order on 15-6-1124. The auction purchaser in O.S. 6/1092 transferred the property to the plaintiff under Ext. Q and the plaintiff has filed this suit to set aside Exts. Z and AA orders on the allegation that those orders were against law and fact.

The main contentions raised by the 1st defendant were that the mortgage in favour of Meera Unni never took effect, that it was executed by Ayyappan Krishnan to defraud his creditors, that even after the execution of the mortgage, Ayyappan Krishnan continued in possession of the property, that Meera Unni was never in possession of the property, and that Meera Unni had lost his rights in the property as his application for redelivery was dismissed and as he did not file a suit to set aside that order.

The court below came to the conclusion that Meera Unni was in possession of the property under Ext. C mortgage, that Ayyappan Krishnan was not in embarrassed circumstances at the time of the execution of Ext. C, that the mortgage was not executed with the intention of defeating or delaying the creditors of Ayyappan Krishnan, that the possession of the auction purchaser in O.S. 6/1092 was transferred to the plaintiff, that the plaintiff was in possession and that he had title to the property. It therefore decreed the suit.

It is against this decree that this appeal has been preferred and the only point argued by Mr. Narayanan Potti appearing for the appellant was that the suit was barred by limitation as it was filed more than one year after the date of Ext. W order. He also contended that since Meera Unni did not file a suit to set aside the order dismissing his obstruction petition within one year of the date of that order, the present suit by the successor-in-interest of Meera Unni was barred by limitation on that ground too. The order on the obstruction petition as well as the order passed on the application for redelivery was not passed after any investigation by the court. The petitions were not pressed and therefore they were dismissed. From Ext. W order it is clear that Meera Unni did not press the application for redelivery, and therefore the court dismissed the application. The question therefore arises whether the orders passed without investigation by the court would attract the provisions of Art. 11(A) of the Limitation Act. Articles 11 and 11(A) are in the following terms:

"11. By a person against whom any of the following orders has been made to establish the right which he claims to property comprised in the order:

(1) Order under the Code of Civil Procedure, 1908, on a claim preferred to or an objection made to the attachment of, property attached in execution of a decree;

(2) Order u/s 28 of the Presidency Small Cause Courts Act, 1882. *

One year

The date of the order

11A. By a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an application by the holder of a decree for the possession of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistence or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser to establish the right which he claims to the present possession of the property comprised in the order." J

One year

The date of the order

Order XXI Rule 103 reads :

"Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive."

This rule makes it clear that it is only an order passed under any of the rules mentioned in this rule that has got finality and if the order does not strictly come within the ambit of the Rule a suit need not be filed within the period of limitation prescribed under Article 11A. The provisions of Order XXI Rules 97 to 100 make it clear that the orders under those rules are to be passed only after an investigation.

"R. 97. (I) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make ah application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

R. 98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extent to thirty days.

R. 99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make an order dismissing the application.

R. 100. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Art. 11 relates to what are familiarly known as claim orders while Art. 11A to delivery of property. In neither article is there any express reference to the particular Rules of the Code. The question that was argued by Mr. Narayanan Potti was that in this case it must be deemed that the orders passed by the court were passed under Order XXI, Rule 103, even though the orders simply registered the'' submission made by counsel on behalf of the obstructor and applicant for redelivery that the obstruction and application were not pressed. The question whether these are orders passed after investigation is not free from difficulty. In Duraisami v. Sadalaimada (A.I.R. 1962 Mad 181) the question was whether an order passed by the court on an application made under Rule 100 on the basis of a submission that the petition was not pressed would attract the operation of Art. 11(A) of the Limitation Act. In that case the petition was dismissed as not pressed. The Full Bench held that it was not an order passed after investigation so as to attract Art. 11A of the Limitation Act. The question whether a particular order is one passed after investigation or not depends upon the facts and circumstances of that case. But it is imperative that the court must be satisfied that the order was passed after investigation into the merits of the petition, in order that it may apply Article 11A. If the court is satisfied that the order was passed after investigation, then it is an order passed under Order XXI, Rule 103, and a suit to set aside that order must be filed within one year from the date of the order. The order passed on Ext. U application for redelivery is Ext. W. That order would not show that it was after an investigation that the court passed it. In fact no evidence was let in by the applicant for redelivery to substantiate the contention that the property was taken delivery of illegally and in violation of the provisions of law. In these circumstances the only conclusion possible is that that order was passed without investigation. So also is the case with respect to the order passed on the petition to remove the obstruction. That there is a distinction between an order passed under Order XXI, Rule 63, and an order passed under Order XXI, Rule 103, is clear from the wording of these two rules. Order XXI, Rule 63, is as follows:

Where a claim or an objection is preferred, the party against whom an order is made 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.

In Dwarika Sahu Vs. Mt. Anandi and Others, it was held that there is a distinction between an order passed under Order XXI, Rule 63, and an order passed under Order XXI, Rule 103, the reason for the distinction being the difference in the wording of the two rules and that an order against the claimant or decreeholder as the case may be, would be final under Order XXI, Rule 63, even if the order was not passed after investigation into the merits of the petition. Therefore the decisions under Order XXI, Rule 63, cannot be of much assistance in deciding the question whether an order would fall under Rule 103 or not. In The Cannanore Bank, Limited Vs. Pattarkandy Arayanveettil Madhavi and Others, a Full Bench of Madras High Court held that an order passed under Order XXI, Rule 63, is final notwithstanding the fact that there was no investigation into the merits of the claim by the court passing it. It was held that Order XXI, Rule 63, applies to all orders passed on claims preferred under Rule 58, and that the test to see whether an order is one passed under Rule 63 is whether the order is against the claimant or the decree-holder, as the case may be and that it is not necessary that the order should have been passed after investigation.

Therefore where the order, ''Petition not pressed. It is dismissed is passed on a petition which falls within R. 58 and the petitioner has not sought permission to withdraw it without prejudice to his rights it is obviously an order which is against him and requires him to file a suit within a year from the date of the order if he wishes to reopen the matter.

In this case I think the order passed on the application to remove the obstruction as well as the order passed on the application for redelivery were not passed after investigation and that they were not conclusive under Order XXI, Rule 103 and therefore were not required to be set aside within the period mentioned in Article 11 A. The suit was therefore within time. In the result the appeal fails and hence it is dismissed with costs.