RASANANDA RATH Vs. RATHA SAHU

JUDGEMENT

(1.) THIS application is directed against an order passed by the Munsif of Cuttack allowing an application made by the opposite party under Order XXI, Rule 100. It appears that in execution of a decree obtained by the petitioner against one Tula Bewa certain land which was alleged to belong to the judgment-debtor was put up for sale. The opposite party then preferred a claim in respect of this land under Order XXI, Rule 58, but it was dismissed summarily on the ground that it had been filed late. Later on, the land was sold and purchased by the decree-holder and the latter obtained possession of the same. The opposite party then preferred an application under Order XXI, Rule 100, on the ground that he had been in possession of the land as a purchaser from Tula Bewa and that as a result of the delivery of possession he had been dispossessed and was entitled to be restored to possession: under Order XXI, Rule 100. THIS application was objected to by the petitioner on the ground that it was not maintainable inasmuch as no suit having been instituted as provided by Order XXI, Rule 63, the order dismissing the claim case of the petitioner had become final. The learned Munsif held, however, that the application of the opposite party was maintainable and that it should be allowed.

(2.) NOW, the identical point which is raised in this case was decided in Bhola Nath Sarkar V/s. Haraduari Agarwala 141 Ind. Cas. 100 : 56 C.L.J. 250 : 36 C.W.N. 034 : Ind. Rul. (1933)b Cal. 80 : A.I.R. 1933 Cal. 233, where on a reference made under Order XLVI, Rule 1 a Division Bench of the Calcutta High Court held that as the scope of enquiry under Order XXI, Rule 100 is the same as that under Order XXI, Rule 58, an unsuccessful applicant in a case under Order XXI, Rule 58 though the application was dismissed for default was incompetent to apply under Order XXI, Rule 100 and the only-remedy open to the claimant was to institute a regular suit as provided under Order XXI, 63 of the Code. It is contended on behalf of the opposite party that this decision should not be applied to the facts of the case, because here the application of the opposite party under Order XXI, Rule 58 had been dismissed summarily and that in dismissing it summarily the learned Munsif had overlooked a principle which has been pointed out in Rajeswari Bibi V/s. Hari Ram 145 Ind. Cas. 444 : A.I.R. 1933 All 751 : 6 R.A. 108 : (1933) A.L.J. 1177 namely that a claim should not be dismissed on the ground that it had been unnecessarily delayed without giving an opportunity to the applicant to explain the delay. The correctness of the decision of the Allahabad High Court is beyond question, but the fact remains that the order of the Munsif dismissing the claim of the opposite party summarily cannot be said to have been without jurisdiction even though it may have been somewhat irregular and as that order not being challenged still stands good the only remedy available to the opposite party was to institute a suit under Order XXI, Rule 63. It is well settled that where a claim or an objection is preferred under Rule 58 and the Court rejects it under the proviso to that rule on the ground that it was designedly or unnecessarily delayed, the order is one made against the claimant or the objector within the meaning of this rule and it will be conclusive unless the party against whom the order is made institutes a suit to establish his right to the property within the period of limitation. 2. I would therefore allow this application with costs and set aside the order of the learned Munsif against which this application is directed. Hearing fee one gold mohur.