JNANENDRA CHANDRA AND ORS. Vs. ATANSENAJIT RAJKUMAR AND ANR.
LAWS(GAU)-1951-6-6
HIGH COURT OF GAUHATI
Decided on June 06,1951

Jnanendra Chandra And Ors. Appellant
VERSUS
Atansenajit Rajkumar And Anr. Respondents

JUDGEMENT

Ram Labhaya, J. - (1.) THIS appeal arises out of a suit for a declaration that the mortgage on the oasis of which defts. 1 & 2 are in possession of the lands in suit has been extinguished and also for khas possession of the property mortgaged. The suit was dismissed by the Sadar Munsiff. On appeal by the plaintiffs, the order of dismissal was affirmed on the ground that the suit was barred under Article 11 -A of the Limitation Act. At this stage the only question that arises for our determination is whether the suit is so barred.
(2.) THE facts bearing on the question of limitation are as follows: The lands in suit belonged to Radha Krishna Pandey and Baidya Nath Pandey. They borrowed money from the father of plaintiffs (deft. 4) and mortgaged the lands in question with other lands to him. After this mortgage, the mortgagors borrowed Rs. 500/ - on the security of the lands in suit from deft. No. 1 and the father of deft. 2 on the 21st April 1923. The mortgage as with possession and for a period of 3 years. Defendant 4, to whom the lands in suit had also been mortgaged with other lands, obtained a mortgage decree against the mortgagors. He did not impaled the subsequent mortgagees and in execution of his decree purchased the lands in dispute along with other lands. He also got possession through Court. Defendants 1 and 2 applied to the Executing Court under Order 21, Rule 100, C.P.C. complaining of unauthorised dispossession on the ground that they were not bound by the decree or the sale in pursuance thereof and were entitled to remain in possession on the basis of their mortgage which was then subsisting. The objection prevailed and possession was re -delivered to defts. 1 and 2 by order of the Court passed under Order 21, Rule 101, on the 30th March 1940. Deft. 4, it is alleged has gifted his rights as auction -purchaser of the lands to his sons, the plaintiffs, who are now the appellants. Plaintiffs case is that they are the representatives of the auction -purchaser and as such are entitled to recover possession of the property from defts. 1 and 2, whose mortgage has been extinguished by virtue of the provisions contained in Section 6 of the Assam Money Lenders Act of 1941 their possession of the lands as mortgagees having remained for over 12 years -from the date of the mortgage.
(3.) THE plaintiffs have sued in their capacity as auction -purchasers. They claim to have derived title from deft. 4 who was the auction -purchaser of the property. They being the representatives of the auction -purchaser, the Courts below have held that their suit is essentially hit by Article 11 -A of the Limitation Act. This view is wholly untenable. It is true that the plaintiffs have sued in their capacity as auction -purchasers. But this is not all that is required for the application of Article 11 -A of the Limitation Act. This article applies when a plaintiff feels aggrieved by an order passed under the Civil Procedure Code and the suit aims at establishing the right which he claims to the present possession of the property. An order passed under Order 21, Rule 101, becomes conclusive between the parties if no suit is instituted under Order 21, Rule 103 by the party against whom the order has been passed. A suit under Rule 103 would be obviously covered by Article 11 -A of the Limitation Act and must be instituted within one year from the date of the order. The person aggrieved by such an order may not institute a suit, which he is allowed to institute by Rule 103. In that contingency the order would become conclusive against him. In the present case, the order passed under Rule 101 against the plaintiff's predecessors in interest was now challenged by a suit within one year. The order thus became conclusive and is not open to challenge. But plaintiffs have nowhere challenged that order. They do not assail its correctness or validity. On the contrary, they by necessary implication accept the finality that attaches to the order and have sued for a declaration of title and for recovery of possession of the property in suit not on the basis that the order passed under Rule 101 not sustainable and they were entitled to possession of the property on the date the order was passed but expressly on the ground that the mortgage on the basis of which defts. could remain in possession when the order under Rule 101 was passed has now been extinguished by operation of law and defts. are thus now not entitled to possession. The suit involves absolutely no challenge to the order passed under Rule 101. This fact is conceded by the learned Counsel for the respondents. In these circumstances, all that can be said is that plaintiffs are suing as auction -purchasers. But the mere fact that they are suing as auction -purchasers would not bring the case within the mischief of Article 11 -A. It has further to be established that the suit is in form or in substance to establish the right which was claimed by the plaintiffs at the time when the order under Rule 101 was passed against them. At that stage plaintiff's predecessors in office claimed present right to the possession of the property as an auction -purchaser. He could claim that right only against the judgment -debtors only. Defendants were not the judgment -debtors and the right to the possession of the property that he claimed against the present defendants was denied to him. In the present case the plaintiffs come as representatives of the auction -purchaser, but do not claim the possession of the property on that basis alone. Their claim now rests on the ground that they are auction -purchasers and the defendants have lost the title to remain in possession by reason of the extinction of the mortgage. In so framing their suit, they have no need to, and they have not challenged the validity of the order under Rule 101. Such a suit, we have no mariner of doubt, would not be covered by Article 11 -A of the Limitation Act.;


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