KRISHNA DUTTA Vs. VISHWANATH

JUDGEMENT

(1.) THIS is an appeal by the unsuccessful plaintiff-appellant, arising out of the following facts: The plaintiff is said to be the auction-purchaser of the disputed property. He was resisted by the contesting defendants in giv ing the delivery of possession. The plaintiff then filed an application under order XXI Rule 97, Civil Procedure Code that the resis tance was being caused by the contesting defendants on behalf of the judgment-deb tor and at his instance. This application was dismissed as barred by time. There upon, the plaintiff filed a suit, as provided under order XXI, Rule 103, Civil Procedure Code. The trial Court dismissed the plain tiff's suit holding that Order XXI, Rule 103, Civil Procedure Code did not apply to the facts of the case and the suit should not have been filed under the aforesaid provi sion. The appeal filed by the plaintiff was also dismissed by the lower appellate court. Hence, this second appeal.

(2.) THE main question for determina tion in this appeal is as to whether the ap plication under Order XXI, Rule 97, Civil Procedure Code gave a right to the ap pellant to bring a suit under Order XXI, Rule 103, Civil Procedure Code.

(3.) LEARNED counsel for the appel lant contended that the dismissal of the ob jection under Order XXI, Rule 97, Civil Procedure Code on the question of limita tion was a decision on merits and, there fore, the suit was competent under O. XXI, Rule 103, Civil Procedure Code. The ques tion is not as to whether the order was on merit or not. But, the question is as to whe ther the dismissal of such an objection on the question of limitation would amount to dismissal of the objection under Order XXI, Rule 99, Civil Procedure Code. As there was no satisfaction of the court that the ob jection was made by a third person, there fore, it cannot be said that the order passed was one under Order XXI, Rule 99, Civil Procedure Code. The objection was dis missed under the rule of limitation.