GOURISHANKAR BALDEOPRASAD Vs. DULICHAND YADAV

JUDGEMENT

(1.) THIS is plaintiffs appeal from the judgment and decree of the Court of 1st additional District Judge, Jabalpur, dismissing his suit No. 20-A of 1951.

(2.) THE plaintiff had filed an application early in 1951 for permission to sue in forma pauperis. That application was dismissed on 19-6-1951 and the plaintiff was directed to bear his own costs and to pay the costs of the present defendants who were the non-applicants in those proceedings. The present suit was thereafter filed in the ordinary manner on 27-12-1951 without payment of the costs of the previous proceedings. The amount payable to defendant No. 1 was offered in Court by the plaintiff on 30-4-1952 but was refused. The costs were then deposited in Court on 14-8-1952. So far as defendant No. 2 is concerned, his costs amounted to Re. 1/-, but he made 110 objection to the institution of the suit on any allegation of non-payment. The lower Court dismissed the suit holding that as the plaintiff had not paid to defendant No. 1 his costs before instituting the suit, which contravenes Order 33, rule 15, Civil Procedure Code, the suit was liable to be dismissed.

(3.) THE dispute relates to a house situate in Miloniganj, Jabalpur. It first belonged to one Chukhar who sold it to Baldeo Prasad by a registered sale deed, dated 241-1927. Baldeo Prasad in his turn sold it to Chokheylal, defendant No. 2, by a registered instrument, dated 28-2-1951. The house was, however, sold in Court auction in execution of the decree in civil suit No. 642 of 1938, obtained by Seth rupchand against one Gopilal, and was purchased by the defendant No. 1, dulichand, on 2-2-1940. A sale certificate was issued in his favour on 9-3-1940. It is alleged by him that he took possession of the house in pursuance of the Court sale on 17-3-1940. The date of his taking possession, according to the plaintiff, however, was 28-2-1942. The date when defendant No. 1 actually took possession is material to determine the question of limitation, if it is held that the suit should be deemed to be instituted on the date when the costs of defendant No. 1 were offered and refused.