BEHARI LAL Vs. DHARAM VIR

JUDGEMENT

(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: <FRM>JUDGEMENT_679_11_1997Html1.htm</FRM> <PG>681</PG>