NAJIMUNNESSA BIBI Vs. NACHARUDDIN SARDAR

JUDGEMENT

(1.) This is a title suit for lands by a lady against the judgment-creditor of her husband who caused the lands to be taken in execution as being the husband's property, and bought them himself at the execution sale. The defendant's decree was obtained in 1910 in Suit No. 453 of 1909. On 4 November 1910 he attached the lands, and the plaintiff filed a claim under Order XX, Rule 58 of the Code. Her claim was dismissed for default on 7 January 1911. Nevertheless, the defendant as decree-holder took no further steps to bring the property to sale, and the execution proceedings were dismissed very soon afterwards for default, whereupon the attachment ceased under Order XXI, Rule 57. In 1918 the defendant issued execution against the same lands, and purchased them at the auction sale. The lower Appellate Court has disposed of the case on the footing that the second execution was under the same decree.

(2.) The present question is whether, in these circumstances, this suit brought in 1918 is barred by Art. 11 of the Limitation Act, not having been brought within a year of the dismissal of the claim case.

(3.) For the appellant, it is contended that when the execution proceedings were dismissed and the attachment fell to the ground in 1911, there was no necessity for her to bring a suit under Order XXI, Rule 63, against the decree-holder. Reliance is placed on Umesh Chandra Roy V/s. Raj Ballav Sen (1882) I.L.R. 8 Calc. 279 decided under the Code of 1859 and on the following cases decided under the Code of 1882: Gopal Puroshottam V/s. Bai Divali (1393) I.L.R. 18 Bom, 241 Krishna Prosad Roy V/s. Bepin Behari Roy (1903) I.L.R. 31 Calc. 228 and Morshia Barayal V/s. Elahi Bux Khan (1905) 3 C.L.J. 381.