SALLE Vs. MOHAN LAL

JUDGEMENT

(1.) THE plaintiff in this case, Salle, and the defendant, Mohan Lal, were joint holders of a simple money-decree for Rs. 70-12-0 against one Khet Singh. A zemindari share belonging to Khet Singh was attached in execution of the decree and put up for sale. It appears that at one stage both the decree-holders had obtained permission of the Court to bid; but this permission lapsed in consequence of the postponement of the sale. Later on Mohan Lal alone applied for permission to oid and, having received it, he became the certified purchaser of the share in question, at an auction-sale held on the 21st of July 1902, for a sum of Rs. 60. He seems to have certified to the executing Court the receipt of Rs. 60 in part satisfaction of the decree. Formal possession was delivered to Mohan Lal on the 28th of July 1903. In the present suit, filed on the 23rd of July 1913, Salle claimed possession of the share in question in accordance with an oral agreement set up by him, to the effect that Mohan Lal s purchase was to be for the benefit of both the decree-holders. He admitted that Mohen Lal had from the first refused to give him possession over any share in the property in suit. THE Court of first instance dismissed the suit on various grounds. Primarily it held that the suit was barred by the provisions of Section 66 of the Code of Civil Procedure; further that, supposing the suit was maintainable in any form, it was barred by limitation and, finally, that no oral agreement of the nature alleged in the plaint was proved. THE plaintiff appealed to the District Judge and his appeal has been dismissed. THE form of the judgment passed by the learned District Judge is assailed in the memorandum of appeal to this Court. As a matter of fact the lower Appellate Court has set out clearly enough the points for determination, but has disposed of the appeal upon findings sufficient to warrant the dismissal of the suit, although they do not cover all the points before it for determination. THE learned District Judge says, in effect, that the suit as brought does offend against the provisions of Section 66 of the Code of Civil Procedure and should be dismissed on that ground. He suggests, however, that if the plaint had been differently worded, and if the plaintiff had contented himself with asserting that the purchase made by Mohan Lal had been effected with the joint funds of Mohan Lal and the plaintiff and for the benefit of both, he might perhaps be permitted to maintain a suit for a declaration on the principles laid down by a Judge of this Court in Achhaibar Dube v. Tapasi Dube 29 A. 557 : A.W.N. (1907) 166 but the learned District Judge remarks that the period of limitation for a declaratory suit, such as was contemplated by the learned Judge who decided that case, is six years, so that even from this point of view the present suit must fail. It is contended before me in second appeal that the suit was one for the recovery of possession, governed by the twelve years period of limitation, and that such a suit is maintainable on the facts set forth in the plaint. I am of opinion that the learned Munsif was right in holding that the suit as brought contravenes the provisions of Section 66 of the Code of Civil Procedure and should have been dismissed on this ground alone; from any point of view, the facts of the case are distinguishable from those of Achhaibar Dute v. Tapasi Dube 29 A. 557 : A.W.N. (1907) 166, where the decree was a mortgage-decree and was exactly satisfied by purchase of the mortgaged property. THE judgment in that case proceeded on its own facts and cannot, in my opinion, be relied upon as authority in the plaintiff s favour in the present case. Moreover, the learned District Judge is right in saying that, if any form of declaratory suit were maintainable on the facts alleged in the plaint, the period of limitation for such a suit would be six years. What the plaintiff in fact claims in the present case is that the defendant, Mohan Lal, is bound to hand over to him one-half share in the property in suit, unless he can produce evidence after an interval of ten years to satisfy the Court that the plaintiff, Salle, as a joint decree-holder, did receive one-half share in the sum of Rs. 60 bid by Mohan Lal as auction-purchaser of the property in suit. I am satisfied that the suit is not maintainable and I dismiss this appeal with costs.