Subedar Singh and Others vs Ramprit Pande and Others

Kulwant Sahay, J.—The plaintiffs suit has been dismissed by the District Judge on a finding that it was barred by limitation under Article 11, Limitation Act. The facts shortly are that the plaintiffs allege themselves to be the purchasers of a holding under a deed of sale dated 17th April 1916. The landlords instituted a suit for arrears of rent against the original tenant and in execution of their decree they proceeded to sell the holding The present plaintiffs and several other persons who claim portions of the holding, the plaintiffs being the purchasers only of a portion filed objections to the attachment under Order XXI, Rule 58, Civil Procedure Code. The Court executing the decree rejected the plaintiffs'' application under Order XXI, Rule 58 as well as the applications of the other objectors, by an order dated 19th April 1922, on the ground that the decree under execution was a rent decree and under the provisions of Section 170, Bengal Tenancy Act, an objection under Order XXI, r.58, CPC could not be entertained. The holding was afterwards sold on 7th June 1922, and was purchased by defendant No. 1. The present suit was instituted on 28th May 1923, that is more than one year after the order rejecting the objection under Order XXI. Rule 58.

The only question involved in this appeal is whether the present suit is barred under Article 11, Limitation Act.

The first ground taken by the learned Advocate for the appellants in support of his contention that the suit was not barred was that the order passed on 19th April 1922 was not an order under Order XXI, r.58, Civil Procedure Code. It is conceded that the plaintiffs did make an objection under the provisions of Order XXI. Rule 58 Their case then was that the decree under execution was a money decree and not a rent decree and, therefore, the right, title and interest of the judgment-debtors against whom the decree had been obtained could only be proceeded against in execution and that the portion of the holding purchased by the plaintiffs could not be proceeded against. The learned Munsif held that the decree under execution was a rent decree and that having regard to the provisions of Section 170, Bengal Tenancy Act, an objection under Order XXI, Rule 58, to the execution of a rent decree could not be entertained. Order XXI, Rule 63, provides:

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.

The order of 19th April 1922, in the present case was an order made upon an application under Order XXI, Rule 58, Civil Procedure Code. That order was evidently against the present plaintiffs inasmuch as it held that the decree under execution was rent decree and not a money decree as was contended for by the present plaintiffs. Article 11, Limitation Act, provides that a suit by a person against whom an order has been made under the CPC on a claim preferred to or an objection made to the attachment of the property attached in execution of a decree has to be instituted within one year from the date of the order. It does not matter whether the order dismissing the objection under Order XXI, Rule 58, was an order disposing of the case on the merits or whether it was an order which held that the objection was not entertain able on the preliminary ground that Section 170, Bengal Tenancy Act, was a bar to the maintainability of the application. In either event it was a disposal of the application under Order XXI, Rule 58 after hearing the parties. The order, therefore, of 19th April 1922, is an order contemplated in Order XXI Rule 63 of the Code and Article 11 Limitation Act. The present suit having been instituted more than a year after the date of that order was evidently barred by limitation.

It is next contended that assuming that the order of 19th April 1922, was an order under Order XXI Rule 63, the Court had no jurisdiction to pass that order and the order was a nullity. I am unable to follow this argument. The plaintiffs themselves presented an application under Order XXI r.58, before the Court executing the decree and asked the Court to hold that the property under attachment could not be attached inasmuch as it did not belong to the judgment-debtors They themselves invited the Court to decide the point and having asked the Court to decide the point they cannot turn round and say that the Court had no jurisdiction to decide it In any event the application being an application under Order XXI, Rule 58, the Court had every jurisdiction to dispose of that application. It may be that the Court took a wrong view and that as a matter of fact the decree under execution was a mere money decree and not a rent decree; but an erroneous order does not affect the jurisdiction of the Court making the order. It only entitles the party to come to the Civil Court to have the error rectified.

The third point taken is that the present suit was not a suit as contemplated by Order XXI, Rule 63, of the Code. The object of the present suit is to declare that, the sale of the portion of the holding purchased by the plaintiffs in execution of the decree of the landlords was a sale in execution of a money decree and, therefore, the right, title and interest of the judgment-debtors alone could pass to the purchaser and not the interest of the plaintiffs who were no parties to the decree. Now this was exactly the right which they wanted to be established by the application under Order XXI, Rule 58. Rule 63 provides that the party against whom an order is made may institute a suit "to establish the right which he claims to the property in dispute." The right which they claimed to the property in dispute in the application under Order XXI, Rule 58, is exactly the right which they want to be adjudicated in the present suit, and it is thus clear that the present suit is a suit as contemplated by Order XXI, Rule 63, of the Code.

The last point taken by the learned Advocate for the appellants was that several other persons had filed other applications under Order XXI, Rule 58, and all those applications along with the application of the present plaintiffs were disposed of by the Court by an order dated the 19th April, 1922. The other objectors instituted their suits within the period of limitation and their suits were decreed; and, therefore, it is contended that the present suit was not barred by limitation. The order complained of has been set aside in the suits of the other objectors. There does not seem to be any force in this argument. The suits of the other objectors were filed within the period of limitation and they were, therefore, perfectly entertainable. The suit of the present plaintiffs was filed beyond the period of limitation and the fact that other suits by other parties were filed within the period of limitation will not help the plaintiffs in so far as the bar of limitation of their suit is concerned. None of the grounds taken by the learned Advocate for the appellants can, therefore, be accepted. The result is that the appeal is dismissed with costs.

Macpherson, J.

I agree.