H.K. RAMACHANDRA RAO Vs. H.K. SUBBA RAO

JUDGEMENT

(1.) THIS is an appeal against the judgment in R. A. No. 138 of 46 -47 on the file of the Additional Subordinate Judge, Mysore, confirming the judgment and decree in O. S. No. 84 of 45 -46 on the file of the Munsiff, Hunsur, who had dismissed the suit.

(2.) THE plaintiff -appellant filed the suit under appeal for declaration of title to, and possession of the entire suit property which his deceased father had purchased in execution of a decree obtained against the father of first defendant alone. This was filed more than a year after a miscellaneous petition, filed by him under Order 21, Rule 97 for removal of obstruction of defendants to his obtaining possession, was dismissed on his failure to appear before Court with his witnesses to adduce evidence in support of his case. Order 21, Rule 99 states that where the Court is satisfied that, the resistance or obstruction was occasioned by any person other than the judgment -debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment -debtor, the Court shall make an order dismissing the application. Order 21, Rule 103, says that any party not being a judgment -debtor against whom an order is made under Rule 99, may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive. Article 11 -A of Schedule II of the Limitation Act prescribes a period of one year for a suit contemplated by Order 21, Rule 103, C.P.C., being filed. It is contended on behalf of Respondents -defendants that the order passed dismissing the miscellaneous petition filed by plaintiff's father under Order 21, Rule 97 is one that was passed under Order 21, Rule 99, and it has become final as no suit was filed within one year after the date of the dismissal of the petition. According to them the present suit is barred by time as it was filed more than a year after the miscellaneous case. On the other hand, it is contended on behalf of the appellant that the miscellaneous petition was dismissed for default of the petitioner to appear before Court and adduce evidence and it was not therefore decided on merits. The order that becomes conclusive under Order 21, Rule 103 on a suit being not filed within one year's time, is an order that is passed under Order 21, Rule 99. An order under Order 21, Rule 99, it is contended is an order passed on merits, as the rule states that the Court should be satisfied that the resistance or obstruction is that of a 'bona fide' claimant before it could pass such an order. An order of dismissal passed 'Ex parte', according to the contention of the appellant, cannot be said to be one passed under Order 21; Rule 99 as the Court cannot be said to have been satisfied that the claim is 'bona fide' and Order 21, Rule 103 is not attracted to such a case. Before analysing the provisions dealing with obstructions to possession of immovable properties purchased in Court sales, it is useful to compare them with the provisions dealing with claims to properties attached in execution of a decree as the wording in the two provisions is similar but not the same. Decisions in respect of one set of provisions are often quoted when a similar question arises in respect of the other set of provisions and in fact in this case decisions dealing with claim cases were relied on. The comparison of the two sets of provisions is very useful and they are here given below side by side for purposes of comparison: <FRM>JUDGEMENT_128_TLKAR0_1951.htm</FRM>

(3.) THE first thing that strikes one when these two sets of provisions are read together is the close similarity of the wording in them. It is clear that the similarity of words used in the two sets of provisions is intentional and not accidental. It Js equally clear, that if there is any substantial difference that difference is also intentional. The 'similarity is apparent and a little scrutiny discloses the difference. It will be noticed, in the first place that the investigation in respect of a claim to attach property may be refused in certain cases under the proviso to Rule 59 (1). On the other hand the Court is bound to direct an investigation in respect of claims of persons who obstruct delivery of possession. The mere fact that a Court directs an investigation does not mean that an investigation is made in the sense that evidence is adduced or that other material is made available by the petitioner, The petition may be dismissed in case the petitioner does not adduce any evidence or place other material or it may be dismissed on merits on considering the evidence in the case. Anyway, a very important point to be noticed on reading together Rules 60 and '61 of order 21, is that the order contemplated in this set of rules can only be passed where the Court is satisfied one way or the other after investigation. On the other hand, the words "whereupon the said investigation" found in Rule 60 before the word "the Court is satisfied" are not used before those words in Rules 98 or 99 of Order 21. The omission of the words is as already stated not accidental. It follows therefore that the orders contemplated under Rules 98 and 99 of Order 21 can be passed even if there is no investigation. How can it then be said that the Court is satisfied about the existence of the circumstances mentioned in Rules 98 or 99 of Order 21, unless the matter is investigated? When a person flies a petition and an objection statement is filed and the petitioner does not care to come to Court to adduce evidence on the date to which the case stands posted for that purpose, the Court can feel satisfied that there is no substance in his case. Thus, even an ex parte dismissal of a petition filed by a person complaining of obstruction can be construed as an order passed under Order 21, Rule 98 or 99 as an order under these rules can be passed after investigation or without investigation. To hold otherwise would be to ignore the significance of the absence of the words "whereupon the said investigation" before the words "the Court is satisfied" in Rules 98 and 99 of Order 21, as compared with these words found in order 21, Rule 60. In this case, the Miscellaneous Petition filed by plaintiff's father complaining of obstruction was dismissed as he failed to appear before Court and adduce evidence on the day fixed for that purpose. All the same the order dismissing his petition is one falling under Order 21, Rule 99. Under Order 21, Rule 103, this order made under Rule 99 became final as no suit was filed within a period of one year as contemplated under Article 11 -A of Limitation Act.