SARBATI DEVI Vs. SRI RAM PRASAD

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit of the nature contemplated by Rule 63 of Order 21 of the Code of Civil Procedure.

(2.) THE defence raised included a plea of limitation. The trial Court negative this plea and, having recorded its find ings in plaintiff's favour on the other ques tions in controversy, decreed the suit. On appeal by the defendant the decree of the trial Court was ultimately set aside on the view that the suit was barred by limita tion. The plaintiff then filed this second appeal. It was heard by Brother S. N. Singh and on the 28th March 1970, he passed an order referring it for decision by a Division Bench on the ground that the State of authorities bearing on the question of limi tation was such that the case deserved hearing by a larger Bench.

(3.) THE property which was the subject-matter of the suit giving rise to this appeal had been attached in a prior suit under the provisions contained in Rule 8 of Order 38, Civil Procedure 'Code i.e., it had been attached before judgment. The pre sent appellant was not a party to that suit nor did she raise any objection to the afore- said Attachment. The suit was decreed in April 1954 and the decree-holder having transferred the decree, the transferee, who is the principal respondent in the appeal before us, applied for execution of the de cree on 30-9-1955. In that application ho set forward two prayers. The first was that his name be substituted in place of the ori ginal decree-holder, and the second was that the property under attachment be sold for satisfaction of the decree. The aforesaid application for execution was proceeded with and by an order passed on 19-5-1956 the name of the transferee was directed to be substituted in place of the original de cree-holder. Thereafter on 29-5-1956 the present appellant filed an objection under the provisions contained in Rule 58 of Order 21, Civil Procedure Code setting forward the claim that the property in exe- cution belonged to her (the appellant in this appeal) and not to the judgment-debtor against whom the decree had been passed. The aforesaid objection under Order 21 Rule 58, Civil Procedure Code was dis missed on 21-1-1957. Thereafter the suit giving rise to this appeal was filed in December 1957 i. e. well after expiry of six months from the date on which the appellant's objection under Order 21 Rule 58 Civil Procedure Code had been dismis sed. There is no controversy that, under1 the amended Limitation Act as applicable to U. P., the period provided in the second column against Article 11 in the first schedule of the Limitation Act of 1908 was only six months. The defendant's plea of limitation was based on the aforesaid arti cle and it is not in controversy that if this article applies the suit would be barred by limitation. Reliance on behalf of the plaintiffs was however placed on Article 120, the contention being that Article 11 was not applicable. Thus, the only question that substantially arises for consideration is whe ther Article 11 is not applicable to the pre sent case. In support of his contention learned counsel for the appellant has referred to the language of clause (I) of Article 11 contending that, by its very terms, this article is applicable only to cases where a claim was preferred or an objection had been made, to the attachment of property attached in execution of a de cree. The learned counsel has urged that since in the present case attachment had taken place under the provisions contained in Order 38, Civil Procedure Code i.e., since it was an attachment not in execution of a decree but an attachment before judg ment, the rule embodied in Article 11 can not be applied to the present case. This con tention appears to overlook the specific pro visions embodied in Rule 11 of Order 38 of the Code which runs as follows:-