Decided on November 02,1978

E.I.D. PARRY LTD Respondents


R.N.Misra, J. - (1.) Defendants 1 and 2 in Title Suit No. 53 of 1974 have carried this revision application against the ordei of the learned Trial Judge finding the suit under Order 21, Rule 63 of the Civil P. C. to be within the period of limitation, the issue relating to limitation having been adjudicated as a preliminary one. When the revision application was placed before one of us for hearing, it was directed to be placed before a Division Bench for final disposal.
(2.) On 13-5-1970, plaintiff (opposite party No. 1) filed Money Suit No. 339 of 1970 in the court of the Subordinate Judge at Cuttack for recovery of the dues on promissory notes executed by opposite parties 2 to 5 and obtained an ex parte ad interim order of attachment before judgment. Petitioners had purchased a house from opposite parties 3 to 5 under a registered sale deed dated 20th of March, 1970, for valuable consideration and when they found that the order of attachment covered this property also, they asked for lifting of the attachment. Their application being Miscellaneous Case No. 255 of 1970 was allowed on 21-12-1971 and the property was directed to be released from attachment. Plaintiff-opposite party No. 1 filed Civil Revision No. 93 of 1972 in this Court on 30th of March, 1972, and that application was ultimately dismissed on 22nd of March, 1973, with the following observations :-- "Mr. C. V. Murty, on behalf of the petitioner contends that the claimants have no right to the properties as the sale in their favour is a fraudulent transaction. The finding of the Court below is otherwise and the only remedy for Mr. Murty's client is to institute a regular suit where this point of fraud and similar other points can get fuller consideration. I cannot interfere with the conclusions of fact arrived at by the court below as it does not involve any question of lack of jurisdiction or illegal exercise of jurisdiction. In the circumstances, I find there is no merit in the revision, which is accordingly dismissed." Plaintiff filed Title Suit No. 53 of 1974 on 21-3-1974. The defendants, inter alia, contended that the suit was barred by limitation. Issue No. 3 was raised in regard to the plea of limitation. The defendants wanted the said issue to be examined preliminarily and when the learned Trial Judge refused to do so, this Court in Civil Revision No. 303 of 1975 called upon the trial court by its Order dated 7-7-1976, to examine Issue No. 3 preliminarily. The learned Additional Subordinate Judge having examined the question has come to hold that the suit is not barred by limitation. That finding is assailed in this revision application.
(3.) Limitation for a suit of this type is prescribed under Article 98 of the Limitation Act of 1963 and that Article runs thus:-- "By a person against whom an order One Year. The date referred to in rule 63, or rule 103. of of the Order XXI of the Code of Civil Procefinal dure, 1908 {5 of 1908) or an order order." under S. 28 of the Pre-sidency Small Cause Courts Act, 1882 (15 of 1882) has been made, to establish the right which he claims to the property comprised in the order. This Article admittedly corresponds to the earlier Articles 11 and 11-A of the Limitation Act of 1908. Both these Articles were merged into one. Under the old Act, limitation ran from the date of the order and under the new Act, limitation runs from the date of the "final" order. The cause of action for the suit contemplated in Article 98 arises when an order adverse to the interest of the plaintiff under the appropriate provision of law is made and the suit has to be filed within one year therefrom. Prior to the amendment of the Code of Civil Procedure by the Amending Act of 1976, Rules 58 (as amended in this Court) and 63 of the Code of 1908 read thus :- "58. (1) When any claim is preferred to any property, the subject- matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) .............. 63. 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." By the amendment of 1976, the order under Rule 58 is open to appeal and against the appellate decision right of suit has been conferred. Mr. Mohanty for the petitioners contends that limitation commences to run from the date of the final order rejecting or allowing the claim and Rule 63 having made the order conclusive subject to the result of a suit, the conclusiveness of the order except when disturbed in a suit cannot be taken away. According to counsel, therefore, a revision application under Section 115 of the Code against the order on the claim petition is not a remedy provided by law and the filing of a civil revision would in no way affect the running of the limitation and the disposal of the civil revision would not give a new cause of action. Otherwise stated, if limitation started running from the date of the order in the claim case, its running would not be arrested by the filing of the revision or pendency thereof and the disposal of the revision would not give a new cause of action. Mr. Mohanty further contends that even if the period during which the Civil Revision was pending before this Court is excluded under Section 14 (4) of the Limitation Act in the matter cf computing the "period of limitation of one year, in the instant case, the suit would still be barred by limitation. It is his contention that the learned Trial Judge has clearly gone wrong in holding that the commencement of limitation is from the date of the dismissal of the civil revision.;

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