Srikrishna Sahu and another vs Dhirja Mahto and another

Wort, J.—It seems to me that there is only one answer to the point which is taken in this appeal. The learned Subordinate Judge on appeal has stated that the order in the claim case is not an order under O. 21, R. 63, Civil P.C., but the grounds for his decision in that regard it is difficult to understand. An objection purporting to be one under O. 21, R. 58 was certainly made by the respondents. Their case was one relating to possession by some sort of family arrangement to which their grandfather was a party. Their case, to state it at its minimum, was that they were in possession and as a result of the petition they filed the learned Subordinate Judge had stated that the property in "dispute does not admittedly belong" to the claimants." By that I understand him to mean that admittedly the property did not belong to the claimants, but they are alleged to be in possession of the property by permission of the two actual owners. If I had to determine whether that came within O. 21, R. 59, I should at least find some difficulty in saying that it was not O. 21, R. 59 provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest or was possessed of the property attached, and if we are to take the petition at its face value, it would seem that he was possessed of the property, but that point is with regard to the merits of the objector''s application.

The question which arose in the Court below and arises here is whether the learned Munsif in the order which I have just read made an order under the Civil Procedure Code, which brings the matter within the mischief of Article 11, Limitation Act, which provides one year''s limitation with regard to "persons against whom an order has been made under the CPC on a claim referred to or a petition made for the attachment of property."

It is quite clear whatever view of the facts may be taken in this case that this was an objection to the attachment of the property the subject-matter of this litigation. That quite clearly was the intention of the parties and the learned advocate who appears on behalf of the respondents wishes to differentiate the order to which I have made repeated references by saying that the substance of it was that the learned Munsif declined jurisdiction as the petitioners had no locus standi. The learned Subordinate Judge in the Court below seems to take that view, but the substance of the order seems to me to be that he has dealt with the merits of the application by showing that the character with which these petitioners clothe themselves is not one which would establish a right under O. 21, R. 58 or R. 59 to have the attachment set aside. If it were necessary to decide the matter I should come quite clearly to the conclusion that in construing the order of the learned Munsif it was an order in which the merits of the petitioner''s objection were determined. It is difficult to look at it from any other point of view, but assuming that the argument of the learned advocate who appears on behalf of the respondents is accepted and that the learned Munsif declined jurisdiction, the matter would be covered by the decision of this Court in the case of Subedar Singh v. Ramprit Pande, 1920 Pat 116 = 115 IC 703. In that case which seems to me was a much stronger ease than the one which I have before me, the learned Judge who dealt with the alleged objection under O. 21, R. 58, declined jurisdiction on account of a fact in the matter with which he had to deal arose out of a rent decree in respect of which under S. 170. Ben. Ten. Act, the particular provisions of the Civil Procedure Code, with which we are concerned were excluded.

The effect of that section made an application of that kind not maintainable. Even so, the learned Judge of this Court came to the conclusion that it was an order under the CPC within the meaning of Article 11, Limitation Act and consequently an action which was based on the rejection of the petition under O. 21, R. 58 was barred after one year. That, so far as this Court is concerned, would seem to conclude the matter. But I have been referred to a Full Bench decision of the Madras High Court in Venkataratnam v. Vadrevu Ranganayakamma Zamindarini Garu, 1919 Mad 738 = 48 IC 270 = 41 Mad 985 (FB). There the case was a refusal to exercise jurisdiction under O. 21, R. 58 by reason of delay. The learned Judge who decided the case considered the variations in the present Code as compared with the Codes of 1877 and 1882, and pointed out that whereas under O. 21, R. 63 a right to bring a suit where a claim or objection which has been preferred and rejected was given, similar provisions of the earlier Code gave such right of action only in the case where a party had had an order made against him under Ss. 280, 281 or 282 and did not include those cases in which under S. 278 the Court had declined to exercise its jurisdiction by reason of delay. In my judgment the decision of this Court in Subedar Singh''s case decides the point and from whatever point of view the matter is looked at it seems to me that the learned Judge in the Court below was wrong in saying that Art. 11, Limitation Act; did not apply. Apart from the point of law which arises, it is difficult to see how the plaintiffs had any merits in their action. If they now say they had none at the time they made their objection, nothing has happened since which would give them any right to succeed in the action which was the subject-matter of this appeal. However with that matter I am not concerned. It seems to me to be necessary to decide the point of law which arises in favour of the appellants.

Before I leave the matter I refer to the case of Abdul Kadir Sahib v. Somasundaram Chettiar, 1923 Mad 76 = 70 IC 648 = 45 Mad 827. That was a case in which the Chief Justice decided, there being a difference of opinion in the case between two of the learned Judges, that Art. 11 did not apply. But there the application which purported to be made under O. 21, R. 58 was not a matter to which O. 21, R. 58 applied at all and the mere fact that a person by mistake makes an application in a matter to which O. 21, R. 58 clearly does not apply, in no way brings the matter within the mischief of Art. 11, Limitation Act; in other words if he has a right of action, the mere fact that by mistake he makes the application to which I have referred in no way alters the period of limitation which is rightly applicable to the particular cause of action which is the subject-matter of his action. In my judgment Abdul Kadir''s case has no application to the point which has been discussed in the case before me.

I would therefore allow the appeal with costs. Leave to appeal is refused.