RASUL MALIK PINJAR Vs. AMINA HANIF

JUDGEMENT

(1.) This appeal raises an interesting question of law which has not previously come before this High Court. A partition decree was passed in a suit, and in execution of the decree the plaintiff complained that he had been dispossessed of certain land by the Collector's subordinate officers which was his own property and not subject to partition. He seems to have originally filed a suit to recover possession of the property, but it was decided by the District Court" that the plaint should be treated as an application under Section 47 of the Civil Procedure Code, and it was treated so accordingly. The trial Judge held that Art. 165 of the Indian Limitation Act applied and the application was held barred as not having been filed within thirty days from the date of dispossession. The question seemed so clear to the applicant's adviser that, as the learned Judge points out, he seems to have admitted that there was no way of getting rid of the application of Art. 165.

(2.) In first appeal this decision was upheld. The learned Judge said: Partition was made by the Collector in pursuance of a partition decree, and in pursuance of that partition the present applicant was admittedly dispossessed of certain land which he now claims to be his own exclusive property and therefore not liable to partition. It is admitted that the suit now treated as an application was instituted several months after this dispossession. These facts, I think, are exactly covered by Art. 165. This is an application under the Civil Procedure Code, 1908, by a person dispossessed of immoveable property and disputing the right of the decree-holder to be put into possession. It is argued by Mr. Majli, the learned pleader for the appellant, that Art. 181 applies to all applications under Section 47. No doubt there are applications under that section to which Art. 181 would apply. But, of course, it can have no application where a period of limitation is provided elsewhere, and, in my opinion, elsewhere In the present case is Art. 165.

(3.) A similar question came before the High Court of Allahabad in Abdul Karim v. Islamun-Nissa Bibi (1916) I.L.R. 38 All. 339, 343 The learned Judges said: On appeals being brought by both the decree-holders and the judgment- debtors, the District Judge, holding himself, as we thick quite properly, bound by certain authorities mentioned hereafter, decided that the judgment-debtor's application was time-barred, on the ground that Art. 165 of the Limitation Act applied to it, and that the time of thirty days had run out. We are clearly of opinion that when the matter is closely examined this view is untenable. In a technical matter of this kind, when the language relied upon does not in express terms cover the case, it is of the highest importance to realize the position of the parties and the context in which the language is used. Where the interpretation sought to bo put upon the words is arrived at by implication and by reference, the Court ought not to adopt a construction which has a restricting and penalizing operation unless it is driven to do so by the irresistible force of language. Now in the ordinary course of things a person who is wrongfully dispossessed of immoveable property has a remedy by a suit for possession only. In matters arising out of the execution of decrees, possibly because they are the indirect result of the active interference of the Court itself, the Legislature has provided two exceptions. The judgment-debtor must apply to the Court under Section 47. If he is dispossessed of land which is outside the decree, and he does not so apply, he loses his land. He cannot bring a suit. He is worse off than the ordinary person wrongfully dispossessed. On the other hand, if a third person outside the suit is unfortunately the victim of some mistake in the decree itself, or by the decree-holder, be may apply to the Court in a summary manner, and if he is right he may be put back into possession. That is expressly provided by Order XXI, Rules 100 and 101. Such a person is better off than the ordinary person wrongfully dispossessed. He can bring a suit, of course, within twelve years; but he can, if he pleases, apply summarily for possession. That is a privilege of a peculiar and special character, from which the judgment-debtor is excluded in express terms. It is not surprising to find such a privilege accompanied by certain restrictions By Art. 165 of the Limitation Act of 1908, (the Art. now in question) such an application must be made within thirty days. The Art. is in these terms:- Description of application:-Under the Civil P. C., 1908, by a person dispossessed of immoveable property and disputing the right of the decree-holder, or purchaser at a sale in execution of a decree, to be put into possession. Period of limitation:-Thirty days from the date of dispossession. Now that is a precise and compendious description of the right given, and the application allowed to a person other than the judgment-debtor by Order XXI, rules 100 and 101. It certainly applies to such an application and there is no other provision in the Code which in the terms it employs at all corresponds to it. We think it quite certain that when the Legislature enacted Art. 165, it had the provisions now contained in Order XXI, Rules 100, 101 in mind. That is to say, it intended Art. 165 to apply to such an application. The argument for the view adopted in the reported cases, and followed by the District Judge in the case, is that the words are wide enough to include a judgment-debtor. Separated from their context this is true. A judgment- debtor is a person in such a case as this. Moreover, the judgment-debtor in his application under Section 47 is complaining of the game sort of act as an applicant under Order XXI, Rule 100, would have to complain of. But the moment it is realized that what the schedule to the Limitation Act consists of is an enumeration of suits, appeals, and applications of various kinds, and that the language of Art. 165 is merely a definition or description, all difficulty as to the use of the word person disappears. In our opinion the word person in that context, although wide enough to include a debtor, was never used in any other sense than that of a person who is authorized by Order XXI, Rule 100, to make an application of that description. To hold otherwise would result in this, that if a judgment-debtor applied to the Court under Order XXI, Rule 100, and adopted the language of Art. 165, his application would have to be dismissed because be is precluded from making an application of that description, and yet if he postpones applying under Section 47 for more than thirty days, the language of the Art. is to be applied to him.