RAMANAND Vs. JAI RAM

JUDGEMENT

(1.) This appeal has been referred to a Division Bench, as the learned Judge before whom it originally came on for hearing doubted the correctness of the rule of law laid down in Lakhrani Kuar v. Dhanraj Singh (1916) I.L.R. 38 All. 509. As all the authorities did not seem to have been laid before us in argument we took time to consider our judgment.

(2.) It appears that in 1905 the present plaintiffs brought a suit against these very defendants to pre-empt the property which is now in dispute. On the 28th of April, 1905, a compromise decree was passed, according to which the plaintiffs were to obtain possession of the property if they paid Rs. 1,000, within three months of the decree; in case of default the suit was to stand dismissed. The plaintiffs paid that amount within the specified period, but did not obtain possession either through the court or privately. On the 25th of April," 1917, long after the period of limitation for an application for execution had expired, but within twelve years of the decree, the plaintiffs instituted the suit out of which this appeal has arisen for recovery of possession of the property decreed to them previously. The court of first instance, after much hesitation, felt bound to follow the case referred to above and decreed the suit. The lower appellate court has refused to follow it in view of certain observations made in the Letters Patent appeal from it. In that case a single Judge of this Court had held "the plaintiff while in possession of the land in question was wrongfully dispossessed by the defendant and I hold that the plaintiff is entitled to succeed on that ground." This was perfectly correct. He, however, went on to hold that even apart from that the plaintiff was entitled "to sue and succeed" upon the previous decree.

(3.) In an appeal under the Letters Patent, Dhanraj Singh v. Lakhrani Kuar (1916) I.L.R. 28 All. 409 it was held that the plaintiff having got actual possession, though out of court, and having been subsequently dispossessed, was entitled to bring a fresh suit. The learned Judges, referring to the view that it is always open to a decree-holder to bring a suit on the decree at any time within twelve years, notwithstanding that the decree has become incapable of execution by lapse of time, remarked: "This dictum, if correct, would mean that suit after suit could be brought upon barred decrees. If this is correct law, it is a very alarming situation." They were inclined to hold that Section 47 of the Code of civil Procedure would be a bar to such a suit, but did not think it necessary to say anything further, as the point was not necessary for the decision of that case and the question had not been fully argued before them.