KANDASAMI MUDALIAR Vs. SIVAGARUNATHA MUDALIAR

JUDGEMENT

(1.) Defendant 2 is the appellant. The plaintiff purchased the suit property in execution of the decree in 0.S. No. 89 of 1919, on the file of the District Munsif's Court of Chidambaram which he had obtained against defendant l's father, one Nataraja. Mudaly. In the course of the execution proceedings defendant 1 preferred a claim on 16 November 1922 claiming the suit house as belonging to her, she-having inherited it from her husband: Nagaratna Mudaly to whom it originally belonged. This claim petition is Ex. F. When this petition came on for hearing,, on 29 November 1922, she stated that she would bring a regular suit to establish her claim and did not press the-petition; and hence it was dismissed on 29 January 1922. The order on the petition which was passed after issue of notice to the present plaintiff is as follows: The petitioner says that he (she) will bring; a regular suit and that he does not press this. So this is dismissed.

(2.) After the dismissal of the petition she-did not bring a suit to establish her claim. The present appellant claims the property through her. It is not necessary to discuss the merits of his claim as against the merits of the plaintiff's claim to the property, as the lower Courts have found that the plaintiff has not established his title. On the merits the District Munsif dismissed the plaintiff's suit, but on appeal the learned Judge held that in the face of Ex. F, the claim order, defendant 1 is barred from resisting the claim of the plaintiff, and as defendant 2 claims through her, he is also barred from asserting his rights. The question for determination is whether defendant 1 is barred from resisting the claim of the plaintiff by her failure to establish her right to the property by instituting a regular suit after the dismissal of her claim petition. Defendant l's objection petition was filed under Order 21, Rule 08, Civil P.C.; Rule 63 of the order says: Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

(3.) The suit contemplated by this rule will have to be instituted within the period of a year from the date of the order as provided by Art. 11, Lim. Act. In Venkataratnam v. Ranganayakamma 1919 Mad 738 a Full Bench decision of this Court, it was held that an order refusing to investigate a claim to attached property, on the ground that there was delay in filing it, is an order passed against the claimant within Order 21, Rule 63, Civil P.C., and Art. 11, Limitation Act (9 of 1908), and that an order on a claim petition merely stating that, as it was filed late, it will be notified to the bidders, is in effect an order rejecting the claim to which the provisions of Order 21, Rule 63, will apply.