LAKSHMAN RAMJEE JADHAV Vs. DATTATRAYA RAMKRISHNA ADVILKAR
HIGH COURT OF BOMBAY
LAKSHMAN RAMJEE JADHAV
DATTATRAYA RAMKRISHNA ADVILKAR
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(1.) In this casa the property in suit originally belonged to Bala Bapu and Krishna Mahadu. By their deeds on April 3, 1864, June 7, 1864, and June 23, 1867, they mortgaged the property to one Bhiku Sonar. On March 1, 1921. the plaintiff purchased from the heirs of the mortgagors their equity of redemption, and brought suit No. 1060 of 1921 for redemption against the mortgagees to which defendants Nos. 1 and 4 were made parties. They contended that they were the Inamdars of the village, and had also the mirasi right, but as the title which they set up was paramount both to the mortgagor and the mortgagee, their names were struck off in the redemption suit. The plaintiff however obtained a redemption decree on July 15, 1922, and got possession on November 30, 1922. Defendants Nos. 1 and 4 made two applications, Exhibits 111 and 120, under Order XXI, Rule 100, and were successful in their applications, and possession was handed over to them on April , 1923. The present suit was brought by the plaintiff on the strength of his title more than a year after the order in the miscellaneous proceedings. Both the Courts held that the suit was barred under Article 11A of the Indian Limitation Act.
(2.) It is urged on behalf of the appellant that the view of both the Courts that the suit "is barred by limitation under Article 11A is erroneous. Under Rule 103 of Order XXI a party who is unsuccessful in the miscellaneous proceedings is entitled to bring a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit the order shall be conclusive. It is urged on behalf of the appellant that the present suit is not based on the right to present possession of the property, but is based upon his title, and, therefore Article 11A of the Indian Limitation Act does not apply. It is further urged that there is difference in the wording of Rule 63 of Order XXI, and role 103 of Order XXI. The former refers to a suit to establish a right to the property in dispute, whereas under the latter the suit contemplated relates to the right which he claims to the present possession of the property, In support of this contention reliance is placed on the cases of Laxmishankar Devshankar v. Hamjabhai Usufally (1919) I.L.R. 44 Bom. 515 s.c. 22 Bom. L.R. 735 Rukmabai v. Fakirsa (1926) 29 Bom. L.R. 230 and Mango Vithal v. Rikhivadas bin Rayachand (1874) 11 B.H.C.R. 174.
(3.) Rules 58 to 63 corresponding to Sections 278 to 283 of the old Civil Procedure Code and Rules 97 to 103 corresponding to Sections 328 to 835 of the old Civil Procedure Code, run on parallel lines. The former sections relate to the objections with regard to the attachment of the property at the instance of a claimant having some interest in or possession of the property, while the "latter relate to the objections respecting the possession of the property in execution of a decree by a purchaser of the property or by the decree-holder or some person other than the judgment-debtor, As the former set of rules relates to attachment of the property, Rule 63 refers to a suit to establish the right which the plaintiff claims to the property in dispute. As the latter set of rules refers to possession, Rule 103 refers to a suit to establish the right which the plaintiff claims to the present possession of the property. Though the two sets of rules relate to different matters, the principles applying to one set of rules equally apply to the other according to the decisions in Minguel Antone Lopes v. Waman Lahshman Lohar (1889) P.J. 17 and Karsan v. Ganpatram (1897) I.L.R. 22 Bom. 875, 888. The suit contemplated by Rule 103 of Order XXI is not confined, in our opinion, to a suit for possession of the property. It is a suit to establish a right which the plaintiff claims to the present possession of the property. And this right may be established either on account of his right to possession or on account of his title. According to the view of the Privy Council in Sardhari Lal v. Ambika, Pershad (1888) I.L.R. 15 Cal. 521, p.c. 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, Their Lordships observed (p. 526):-
But besides that, the Code does not prescribe the extent to which the in-veabigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. However that may be,...in this case the order was made; and it was an order within the jurisdiction of the Court- which made it. It in not conclusive; a suit may be brought to claim the property, not-withstanding the order; but the Law of Limitation says that the plaintiff must be prompt in bringing his suit.;
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