AISAMMA Vs. MOIDEEN KUNHI BEHARI

JUDGEMENT

(1.) The point to be decided now is whether the question of 2nd defendant's title has been concluded against her by reason or the order passed in R.E.A. No. 243 of 1910 in R.E.P. No. 375 of 1910.

(2.) The suit property-was attached in R.E.P. No. 375 or 1910 and the 2nd defendant filed a claim petition (R.E.A. No. 243 of 1910) claiming right to the property. The order passed on that petition is Ex. E. and rims as follows: "There is no time to investigate into this claim. The petition is dismissed without investigation on the ground of delay. I may add that the sale will not affect the rights, if any, of this petitioner." The plaintiff's contention is that as the 2nd defendant did not tile a suit within a year from the date of this order her right to the property is barred.

(3.) Now if the order had been merely, "This petition is dismissed without investigation on the ground of delay," the matter would have been quite simple. It would be covered exactly by the Full Bench case, Venkataratnam V/s. Ranganayakamma (1918) I.L.R. 41 M. 985 : 35 M.L.J. 335 (F.B.) wherein it was held that such an order was an order rejecting the claim, to which the provisions of Order 21, Rule 63 will apply. The question is, what is the effect of the added sentence "The sale will not affect the rights, if any, of this petitioner." Can it be said that when the order expressly declared that the sale would not affect the right of the petitioner, the order was one passed against the party?