S MPAPIAH Vs. K NPAPAIAH

JUDGEMENT

(1.) This appeal raises a point of some importance. The appellant in this appeal had originally obtained a decree in O. S. No. 281 /24-25 for money and in execution thereof attached the present suit schedule property. Thereafter the said property was sold on 12-9-1940 and the Appellant himself purchased the same. On 25-8-1944 the sale was confirmed. After confirmation of the sale the plaintiff filed a petition for delivery of possession of the properly. When he went to take possession, he was resisted by one Vasanthappa. The plaintiff thereafter filed a petition against said Vasanthappa for removal of the obstruction. The said Vasanthappa appeared and filed a statement contending that the property belonged to him. The plaintiff's petition was heard and dismissed by the Court on 11-8-1948 on the ground that it was not filed within 30 days from the date of obstruction. Thereafter the Appellant filed this suit for a declaration of his title to the property and for possession. The suit was dismissed by the trial Court on the ground that such a suit is not maintainable under Order 21, Rule 103, C. P. C., in view of the fact that the application under Order 21, Rule 97 made by the Appellant was dismissed on the ground of limitation; in other words, the said Court held that as the said application made by the Appellant was not heard and decided on its merits, no suit can be instituted under Order 21, Rule 103. The Appellant thereafter preferred an appeal against the said decision to the Court of the Subordinate Judge, Civil Station, Bangalore. The lower Appellate Court also took the same view. The present appeal has been preferred by the Appellant against the said decision of the lower Appellate Court.

(2.) At the outset, I should mention that the learned Advocate appearing for the Respondent frankly conceded before me that he is not in a position to resist this appeal and support the view taken by the lower Appellate Court. In my opinion, the attitude of the learned Advocate was very-fair. I am also of the opinion that the view taken by the lower Appellate Court is wholly untenable. Rule 103 of Order 21 is not a permissive rule in the sense that a party derives his right to institute such suit under the said rule. What that rule toys down is that unless a suit is instituted by a person against whom an order is made under Order 21, Rules 98, 99 or 101 to establish the right which he claims to the present possession of the property, the order made under the said rules will be final and conclusive. In my opinion, the right of a party to institute a suit is not derived from the provisions of Order 21, Rule 103 but is independent of it. As I have mentioned, Order 21, Rule 103 only makes an order already made under Rule 98, Rule 99 or Rule 101 final and con-elusive unless such a suit is filed. I cannot understand how the. lower Courts could take the view that because the case does not come under Order 21, Rule 103, the present suit is not maintainable. The view taken by the said Court is clearly negatived by two decisions of this Court reported in Sevaram Lunidaram Sait v. W. II. Hanuman-thappa, 18 Mys LJ 166 and H. K. Ramachandra Rao v. H. K. Subba Rao, ILR 1952 Mys 118: (AIR 1952 Mys 25). In the latter case an application under Order 21, Rule 97 was dismissed as the petitioner failed to appear and to produce evidence in support of his application. He then brought a suit for declaration and possession of the property more than one year after the date of the order of dismissal. The Courts below dismissed it as barred by time. It was contended in second appeal that an order of dismissal which was passed ex-parte and on failure to adduce evidence could not be one passed after investigation within the meaning of Order 21, Rule 99 and that Rule 103 of Order 21 was therefore, not applicable. This contention was negatived by their Lordships. In delivering judgment of the Court Mr. Justice Mallappa observed as follows:

(3.) In this view of the matter, I set aside the order of the lower Appellate Court and send the case back to the trial Court for re-hearing on other issues raised therein. The Appellant will get costs of this appeal. A certificate is granted to the Appellant under Section 10 of the Mysore Court-fees Act authorising him to receive from the Deputy Com missioner the full amount of fee paid on the memorandum of appeal.