ABDUL KADIR SAHIB Vs. UTMSOMASUNDARAM CHETTIAR

JUDGEMENT

(1.) This second appeal is referred to me by reason of a difference of opinion between Spencer and Krishnan, JJ., the Referring Bench. The question referred is whether the suit is barred by limitation. The first Art. of the Schedule to the imitation Act which is relied upon it Article 11.

(2.) The effect of that Art. is that, where an order is made under the Civil Procedure Code, 1908, on a claim preferred to, or objection made to the attachment of property in execution of a decree, the limitation is one year from the date of the order. The facts of this case are these: Property which was mortgaged to the present plaintiff was seized in execution by the present defendant and brought to sale. The sale was advertised to take place on the 20 of November 1913. On that day an application was filed on behalf of the plaintiff asking that the proceeds of the sale which was about to take place should be held in Court because he claimed they belonged to him under hypothecation. I have very considerable doubt whether, in fact, that was filed before or after the actual Sale, and I am rather inclined to the view that it was filed after the sale, because, when the matter came before the Court next day, the Court said that the sale was already concluded and the decree-holder had got his amount, and dismissed the application. It is difficult to understand how the Court could have done that if the petition was in time, and I am told that under Order XXI it is the recognized practice that you are too late altogether if you take your proceeding after the sale has taken place. If the petition was out of time it is quite easy to understand the order of the District Munsif. Otherwise, it is very difficult to understand how the District Munsif came to make that order. But, however that may be, one thing to my mind is quite clear that the District Munsif dismissed that application not on the ground of delay or anything of that kind, but on the ground that he had no jurisdiction to hear it. He says "the sale has taken place, I cannot hear this," that is how I interpret the order that he has made, and it is quite clear that he did not hear it. He did not consider the question whether or not there was a mortgage, or whether or not the present plaintiff was entitled to the property or the proceeds of the sale. It was never considered at all. That being so, in my judgment, there is no order on a claim preferred within the meaning of the Limitation Act and no order within the words of Order XXI, Rule 63 on a claim or objection preferred against the present plaintiff. Rightly or wrongly, in my view, the District Munsif simply said "I will not hear you." It is argued, however, that, notwithstanding that, I am bound by the decision of the Full Bench of this Court in Venkatratnam v. Ranganayakamma 48 Ind. Cas. 270 : 41 M. 958 : 8 L.W. 292 : 24 M.L.T. 197 : (1918) M.W.N. 599 : 35 M.L.J. 335 (F.B.) to hold that this was an order coming within the rules and Art. 11 of the Limitation Act. I do not read that case to decide anything of the kind. What that case did was to take an order which was made by the District Munsif and referred to as Exhibit V, which I have sent for and examined, and treat that order as a refusal of the application on the ground that there had been laches of delay which brought the matter under, the proviso to Order XXI, Rule 58 which is in these terms: Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(3.) And the Full Bench held only, that where a decision is given on the ground that the matter has been designedly or unnecessarily delayed, that is a decision and an order against the applicant under Rule 63 to which Art. 11 applies. I think this is quite clear from the judgment of the learned Chief Justice and Seshagiri Aiyar, J. The latter says: The language of Order XXI, Rule 63, leaves little room for doubt that all orders which negative the right set up by the claimant or the decree-holder are within the rule.