SADAYA PILLAI Vs. AMURTHATHACHY

JUDGEMENT

(1.) The plaintiff had preferred a claim under Section 278 of the Civil Procedure Code and his claim was disallowed under Section 281 of the Civil Procedure Code. Within a year of the order disallowing the present plaintiff's claim, the judgment-debt was satisfied otherwise than by the sale of the attached property. The present suit is now brought to establish the plaintiff's right to the properties as usufructuary mortgagee and for recovery of possession from the defendants. It has been held that the suit is barred under Art. 11 of schedule II of the Limitation Act.

(2.) Mr. Seshagiri Aiyar, appearing for the plaintiff who is the appellant before us, contends that the order under Section 283 enures in favour of or against the decree-holder or the claimant and not the judgment-debtor, The judgment-debtor, according to this contention, is not a party within the meaning of Section 283 and this contention would seem to be supported by the decisions in Kedarnath Chatterji V/s. Rakhal Das Chatterji (1888) I.L.R. 15 Calc. 574 and Morshia Barayal V/s. Elahi Buxkhan (1905) 3 C.L.J. 381 where the proposition is laid down that, in proceedings under Section 278, the real question for decision is not whether the title to the property belongs to the judgment-debtor or the claimant but whether the property should be released from attachment or not. We may also point out that the observations of their Lordships of the Privy Council in Sardhari Lal V/s. Ambika Pershad (1888) I.L.R. 15 Calc. 521 at p. 525 would indicate that, besides the claimant, the only other party within the meaning of Section 280 is the judgment-creditor. But Koyyana Chithemma V/s. Doosy Gavaramma (1906) I.L.R. 29 Mad. 225 and Moidin Kutti V/s. A. Kunhi Kutti Ali (1902) I.L.R. 25 Mad. 721 proceed upon the view that if the judgment-debtor be made a party to the proceedings and there has been an adjudication between him and the claimant, the suit of the claimant would be barred as against him if not brought within a year. Even supposing that to be the correct interpretation of the section of the Code in question--and we do not think that the respondent can properly put her case any higher--we find that in the present case the respondent, who was judgment-debtor in the claim proceedings, neither appeared nor was there adjudication of the claim as between her and the present plaintiff. We may point out that the decision in N. Perengary-from V/s. T. Parameshxvaren Nambudry (1869) M.H.C.R. 472 proceeds upon the Code of 1857 where the language employed is different from that of the code of 1882.

(3.) We therefore hold that the view taken by the lower Appellate Court on the question of application of Art. 11 of the Limitation Act is wrong. The decree of lower Appellate Court will be set aside and the case will be remanded to it for disposal on the other issues. Costs will abide the result.