RADHAKRISHNA SETTY Vs. MOHIDEEN KHAN AND

JUDGEMENT

(1.) The property in dispute which is a house in Civil Station, Bangalore, admittedly belonged to one Chandbi who executed a sale deed Ex. XV dated 30-8-1915 with respect to it in favour of Syed Abdulla. Exhibit G dated 4-2-1938 is the other sale deed similarly executed by her in favour of Dastagir Khan who in turn executed the sale deed Ex. J in favour of Peer Khan. There was resale on 19-2-44 to Dastagir Khan and on the same day he executed Ex. F to the plaintiff. The property was attached in execution of a decree obtained against Syed Dawood son of Syed Abdulla the purchaser under Ex. XV. The plaintiff objected to the attachment alleging that he was the owner but the petition was dismissed on the ground that it was belated. In order to have it set aside the suit from which this appeal arises was filed against the purchaser of the property in execution proceedings who is defendant 1. The decree-holder was impleaded as defendant 2 and the legal representatives of the judgment-debtor Syed Dawood were the other defendants. The learned Subordinate Judge after recording evidence granted a decree to the plaintiff. The purchaser at the execution sale appeals. The plaintiff and the decree-holder are the respondents. The jugment-debtor's legal representatives are not parties to the appeal.

(2.) Two contentions pressed on behalf of the appellant against the decisions of the lower Court are that the sale deed in favour of the judgment-debtor's father being anterior to others should be upheld and that even otherwise the suit was barred by limitation. The first is a question of fact and the other is of law. If priority of the sale deeds is the sole test Ex. XV being earlier than Ex. G. the appellant will succeed and there will be no need to consider the question of law. The lower Court has, however, held that in spite of its priority Ex. XV is ineffective as a sale. No one present at the time of sale or who brought it about has been examined, probably because none of them was available for examination. Apart from the bare production of the deed, the appellant has not placed any material to show that the deed was acted upon and that the ostensible purchaser entered upon the property or dealt with it as an owner. According to the evidence, right up to the date of Ex. G, the vendor Chandbi herself continued to be in possession of the property as before. Not a single receipt has been produced by the appellant to show or suggest that Kandayam due to the Municipality was ever paid by Syed Abdulta. On the other hand, several receipts, Exs. L to L65 are produced by the plaintiff which do not mention the name of the person making payment but are nevertheless indicative of payment by the person producing them. It is reasonable to infer from these that the taxes were paid up to 1938 by Chandbi and Ex. K is a special notice issued by the Municipality to Chandbi. In addition to these, there are a number of tease deeds, Exs. A to E, P, Q, R, S, T and W in favour of the plaintiff and his predecessors-in-title. The tenants nave been examined to speak to payments of rents under the lease deeds. As against all these, there is absolutely no evidence on the side of the appellant to prove or probabilise that the sale to Syed Abdulla was a genuine transaction or that the property was over enjoyed by him or members of his family. The plaintiff seems to be ignorant of anything relating to the property before the sale. The learned Subordinate Judge has upheld the later sale by Chandbi to Dastagir Khan in 1938, in preference to the earlier one under Ex. XV and there is no good reason to take a different view.

(3.) It is, however, contended by Sri Krishnamurthy, learned counsel for the appellant, that the suit is liable to be dismissed as being belated owing to lapse of more than one year from the date of dismissal of the claim petition when the suit was filed. The petition was dismissed on 5-11-47 and the suit was filed on 26-2-1949 obviously beyond one year which is the period of limitation prescribed by Article 11, Limitation Act, for a suit to set aside an order passed in summary proceedings. The order sought to be cancelled in the present case being one passed without investigation, it is said, is not hit by the said Article. The decision of this Court in 49 Mys H C R 275 (A) supports this. Sri Krishna Murthy argued that the decisions of this Court cannot be relied upon as the proceedings arose in the Civil Station and that these are governed by the view of law enunciated by the Madras High Court in parti cular and some other Courts in India, according to which the application of Article 11 cannot be avoided by reason of the order cancellation of which is sought being one passed without investigation. Judicial opinion about this is not unanimous. While -- 'Ven- kataratnam v. Ranganayakamma', AIR 1919 Mad 733 (FB) (B) and Cannanore Bank Ltd. v. P.A. Madhavi, AIR 1942 Mad 41 (FB)(C) are some of the cases in which the Article is held to apply to all suits for cancellation of orders whether passed after or without investigation -- 'Kanhaiyalal v. Banke Behari', AIR 1938 All 542 (D), 'Sitaram v. Ganpati', A I R 1937 Nag 149 (E) and Parsottam Dass v. Ali Haidar', A I R 1937 Oudh 493 (F) support the view taken by this Court that it does not apply to cases in which there is no investigation. Assuming that the view of law applicable to suits in the Civil Station was what has been laid down in the decisions of the Madras High Court, there is still the question whether the view of this Court should not prevail by virtue of retrocession of Civil Station to Mysore and operation of Act 57 of 1948. This Act came into force on 15-8-1948, i.e., before the expiration of one year from the date of the order and by this all laws in force in Mysore were made applicable to the Civil Station. Nevertheless it was contended that this cannot and does not affect the case and the period of one year within which the suit had to be filed is not enlarged. In support of this it was alleged that the appellant had a vested right to the suit being filed earlier and the remedy to the plaintiff pro vided for by law must be deemed to have been lost on account of the delay. As already mentioned, when the Act came into force the period of one year had not elapsed, and so the right, if any, to the defendant was only prospective and contingent, not vested. If the interval between the date of the order on the claim petition and Act 57 of 1948 was more than a year and the suit was not filed within a year, the position may have been different. More over, alteration of time within which proceedings are to be instituted is held to be procedural and may operate retrospectively. In--'Rex v. Chandra Dharma', (1905) 2 K B 335 at p. 338 (G), Lord Alverstone C.J. observed : "The rule is clearly established that apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a statute shortening time within which proceedings can be taken is retrospective and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective." Channel J. also stated "an alteration of the time within which they may, be prosecuted whether by extension or diminution was a matter of procedure only." There is a difference between a case in which the normal period of limitation for a suit is extended before the normal period has run out and a case in which the period is extended after the claim is barred by time ordinarily allowed. This case is of the former class and does not suffer from the bar of limitation. The suit was rightly decreed. The appeal is dismissed with costs. Advocate's fee Rs. 50/-.