BALDEO SINGH Vs. HIRA LAL

JUDGEMENT

(1.) This was a suit by the respondent, Hira Lal, for possession of zemindari property purchased by his father, Ranjit, at an auction-sale.

(2.) The facts are as follows: In April 1884, two brothers, Baldeo Singh and Nand Kishore mortgaged the property in suit to Ranjit in order to pay off debts incurred by their father, Indarjit. In 1893, the interest of Nand Kishore in the property was purchased by the respondent, Muhammad Raza, at a sale held in execution of a money-decree. In April 1894, Ranjit brought a suit on his mortgage against the two motrgagors and Muhammad Raza, and obtained a decree for sale, in execution of which he purchased the property himself. The sale was confirmed in January 1898, bat the certificate of sale was not issued to Rinjit till March 1905. In January 1907, he applied to the Court under Section 318 of the Code of Civil Procedure, 1882, for possession of the property. Nand Kishore had died and his son, Roshan Singh, was not made a party to the proceeding1. Muhammad Rsza was a party but did not put in an appearance. Baldeo Singh resisted the application on the ground that it was barred by limitation. This plea having been overruled, he appealed to the Court of the District Judge. Ranjit there pleaded that no appeal lay. The District Judge held that an appeal did lie, because the order on Ranjit s application was one passed under Section 244 of the Code. He held, also, that Ranjit s application was barred by limitation. The appeal was accordingly allowed and Ranjit s application was dismissed. Ranjit filed a second appeal in this Court. This Court did not touch the question whether the order of the first Court was appealable to the Court of the District Judge, but dismissed the second appeal on the ground that Ranjit s application, under Section 318, was barred by limitation. Seven months later, a Pull Bench of the Court, overruling several previous decisions, held that the question to be decided upon an application under Section 318, was not a question between the parties to the suit or their representatives and could not be determined under Section 244, in other words, that no appeal lies against an order passed upon an application under Section 318. The majority of the Full Bench held that an auction-purchaser could claim possession, not only by means of an application under Section 318, but also by a separate suit. That decision was pronounced on December 14tb, 1908. The present suit was instituted on January 10th, 1909. One of the pleas taken by the defendants was that the matter was res judicata. It has been rejected by the Courts below. In my opinion, they were right. The final decision in the case, under Section 318, was the decision of this Court. As already stated, this Court decided only that Ranjit s application was barred by limitation. It expressed no opinion what-over on the question whether an appeal lay against an order passed upon an application under Section 318. Strictly speaking, this Court ought not to have taken up the question whether Ranjit s application was barred by limitation, without first deciding whether the question upon an application under sec tion318 was one arising under Section 2-14, for, unless the question arose under Section 244, no appeal lay to the Judge, and the decision of the first Court should have been restored. However, the fact remains that this Court did not decide that the question was one arising under Section 244, and that no separate suit would lie.

(3.) I agree, therefore, with the Courts below that the present suit is not barred by the previous proceedings.