- (1.) ORDER
(2.) . The short question involved in this appeal is as to whether a suit could be filed under Order 21 Rule 63 of the Code of Civil Procedure two years after the date on which objections filed under Order 21 Rule 58 Civil Procedure Code against attachment of the suit property came to be dismissed for default. The skeleton facts centering round this controversy are to the effect that the appellant claimed to be the auction-purchaser who had purchased the suit shop in an auction dated 14/1/1964 for Rs. 14,500.00. The said auction was held in execution of two money decrees obtained by one Bankey Lal against the judgment-debtor one Jagdish Saran. Two execution cases i.e. Cases Nos. 46 and 47 of 1958 were initiated by Bankey Lal, the decree-holder and he put the property to sale. The appellant herein emerged as the successful auction- purchaser for one shop as stated above. Auction in his favour was confirmed on 29/7/1966 and the sale certificate for him was prepared on 6/8/1966. Symbolic possession was also given to him on 9/8/1966. Defendants Nos. 1 and 2 against whom the present appellant-plaintiff filed the present suit are alleged to have obtained a compromise decree in Suit No. 11 of 1959 against the original judgment-debtor, Jagdish Prasad in execution of that decree they got the very same suit property attached in Execution Case No. 24 of 1965. This property was purchased by Defendants 1 and 2 on 11/3/1967 for a consideration of Rs. 3,000.00. Auction-sale in their favour was confirmed on 2/6/1969. The plaintiff-appellant herein sought to get the attachment of the said shop in Execution Case No. 24 of 1965 removed and for that purpose moved the executing court under Order 21 Rule 58 Civil Procedure Code. That application got dismissed for default on 8/10/1966. It is thereafter that the plaintiff- appellant filed a suit under Order 21 Rule 63 as it then stood on the statute- book. The suit was filed by him on 7/10/1968. It is obvious that the said suit was barred by limitation as provided by Item 98 of the Schedule to the Limitation Act which reads as under: JUDGEMENT_679_11_1997Html1.htm 681 . It is obvious, therefore, that when a person against whom an order referred to in Order 21 Rule 63 of the Code of Civil Procedure, 1908 is passed, seeks to file a suit challenging the said order, the limitation period is one year from the date of the final order. The final order under Order 21 Rule 58 against the appellant was passed though on default of his appearance on 8/10/1966. Consequently, by operation of Order 21 Rule 63 Civil Procedure Code as then applicable and Item 98 of the Schedule to the Limitation Act, one-year period was available to the appellant to challenge the said order but he missed the bus and filed the suit on 7/10/1968 which was clearly time- barred. Such a time-barred suit ought to be dismissed by the court as laid down by Section 3 of the Limitation Act and Section 5 obviously could not apply to suits. Therefore, the plaintiff appellant by his own negligence was left high and dry. Learned counsel for the appellant vehemently contended that on merits he has a very good case. He may have a very good case in his favour but as his suit is time-barred and there being no power to condone the delay, it has been rightly dismissed by the court below. However, learned counsel for the appellant submitted that the period of limitation of one year would apply to those cases wherein orders under Order 21 Rule 58 were passed on merits and adjudicated upon. But in case where such orders are passed on default of appearance of parties and such applications are dismissed for default, it cannot be said that such an order would attract the period of limitation prescribed by Item 98 of the Schedule to the Limitation Act. It is not possible to agree. The said Item 98 of the Schedule to the Limitation Act clearly provides that in filing the suit by a person against whom an order referred to in Order 21 Rule 63 is passed, he has only one year's period to challenge the same and the said period starts from the date of the final order under Order 21 Rule 58. The final order in the present case was obviously passed almost two years back. It is pertinent to mention that Order 21 Rule 63 itself lays down as follows: "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." Where the claim or objection preferred by a party under Order 21 Rule 58 gets rejected for any reason, an order which is not favourable to him can be said to have come into operation. The only remedy available to him for challenging it is to file a suit and subject to the result of such suit, order passed against him under Order 21 Rule 58 would become final. It cannot, therefore, be said that in order to become operative the rejection of the claim under Order 21 Rule 58 Civil Procedure Code must be based on merits. It is obvious that after 682 the application was made to get the attachment of the property lifted, the court would proceed to investigate the claim or objection and if the applicant remains absent, the court could dismiss the objection for default. That order would remain operative if not challenged in accordance with law. In the present case the application though got dismissed for default, must be said to have resulted in an order under Order 21 Rule 58 Civil Procedure Code against the petitioner. It is of course true that if the order was passed on merits after adjudicating the claim as per the provisions of Rule 58, Order 21 a suit could be filed to challenge the order passed on merits. On the other hand, if it was passed on default, the same order could as well be challenged in one year by a substantive suit as laid down by Order 21 Rule 63 Civil Procedure Code as then operating. But apart from that remedy, further remedy was available to the petitioner to move a petition under Order 9, Rule 9 Civil Procedure Code for getting such order of dismissal for default set aside on making out sufficient cause for his absence. The said provision is to be read with Section 141 Civil Procedure Code which reads as under: "14. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction." Order 9, Rule 9 reads as under: "9. Decree against plaintiff by default bars fresh suit.-(1 Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2 No order shall be made under this rule unless notice of the application has been served on the opposite party." . Of course, for moving for setting aside the said order of dismissal, the period of limitation is still less as laid down under Item 123 of the Schedule to the Limitation Act. It lays down that for restoring an application dismissed for default of appearance or for want of prosecution the period of limitation is 30 days from the date of dismissal. Even then the said remedy which was available to the appellant was not resorted to and instead a stillborn suit was sought to be filed. Consequently, no fault could be found with the decision rendered by the High court confirming the dismissal of the suit on the ground of bar of limitation. We may also mention that the aforesaid statutory provision applied to the facts of the present case. However, after 1976 Amendment, Order 21 Rule 63 is no longer on the statute-book and orders passed under Order 21 Rule 58 Civil Procedure Code now are treated to be decrees and cannot be challenged by way of a separate suit. The said new statutory claim can be of no avail to the appellant in the present case. Consequently, the appeal fails and is dismissed. There would be no order as to costs. Ad interim relief granted stands vacated.;