DURAISAMI NADAR Vs. SUDALAIMADA NADAR

JUDGEMENT

(1.) THIS appeal originally came on before Subrahmanyam J. , who considered that it should be heard by a Division Bench, mainly because, in his opinion, the decision of a Division bench in Venkatasubba Reddi v. C. Linga Reddi, 41 Ind Cas 640 : (AIR 1918 Mad 554 (1)) required reconsideration. The learned Judge formulated the following questions as falling for decision in the appeal :

(2.) THE only question which was raised at the original hearing of the appeal was whether the suit was barred under Art. 11-A of the Limitation Act. The learned subordinate Judge held that that Article did not apply, and therefore, the suit was in time. The contention on behalf of the appellant was that Art. 11-A applied to the suit, and that, as the suit was not brought with in one year from the date of the order dismissing the plaintiff-respondents' application under Or. XXI rule 100 c. P. C. , the suit was barred.

(3.) ART. 11-A runs thus : description of suit Period of limitation. Time from which period begins to run. By a person against whom an order has been made under the Civil procedure Code, 1908, upon an application by the holder of a decree for the possession of immoveable property or by the purchaser of such property sold in execution of a decree complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order. one year. the date of the order. To under stand the scope of the first column of the above Article, it is necessary to refer to the following rules of Order XXI C. P. C. : 97 (1 ). Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the court complaining of such resistance or obstruction. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 98. Where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other persons at his instigation, it shall direct that the applicant be put in to possession of the property, and where the applicant is still resisted or obstructed in obtaining possessing the court may also, at the instance of the applicant, order the judgment debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days. 99. Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than those mentioned in rule 98)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. 100 (1) Where any person other than the judgment debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property, or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.