C V VENUGOPAL MUDALI Vs. CVENKATASUBBIAH CHETTY

JUDGEMENT

(1.) The second defendant is the appellant. The suit was brought on the original aide of the High Court for the establishment of the plaintiff s right to attach the plaint properties in execution of the decree which the plaintiff had obtained against the first defendant in Original Suit No. 13 of 1905. The second defendant put in a claim petition when the properties were attached by the plaintiff in execution of that decree on the allegation that the properties did not belong to the first defendant (the judgment-debtor) but to his wife (the third defendant) and that the second defendant had a mortgage right over the properties, the mortgage having been created by the third defendant in favour of the second defendant s transferor. His (second defendant s) claim petition was allowed in August 1909 by a single Judge of this Court sitting on the original side. The plaintiff (the decree-holder) appealed against that order and that order was confirmed by a Division Bench of this Court on the 21st December 1910. Thereupon the plaintiff brought this suit on the 16th December 1911 just within one year of the order of the Appellate Court but more than one year after the date of the order passed by the single Judge.

(2.) The second defendant raised a preliminary contention that the suit was barred by limitation under Article 11 of the second schedule of the Limitation Act. His contentions were (a) The order of the Division Bench dated December 1910 dismissing the appeal from the order dated August 1909 passed on the claim petition was passed without jurisdiction as no appeal lay against the latter order. (b) Even if such an appeal lay the one year s period mentioned in the third column of the Article 11 of second schedule of the Limitation Act commenced in August 1909 (the date of the original order allowing the claim petition) and not from the date of the appellate order (December 1910). (6-1) As the appellate order did not interfere with the original order it could not be held to have superseded the original order, (6-2) As even if it superseded the original order the order mentioned in the third column of Article 11 means the original order the legislature not having in Article 11 used the words " final decision or order "(as the legislature did in Article 13) and not having expressly postponed the commencement of the limitation period to the date of the final order [as it did in Clause (2) of Article 182],

(3.) On this preliminary question of limitation Mr. Justice Bakewell decided against the second defendant for the following reasons:--(1) that the Division Bench who decided the appeal in the claim petition case had jurisdiction to entertain and decide the appeal on the authority of Sabhapathi Chetty v. Narayanasami Chetti (1902) I.L.R. 23 Mad. 555, (2) that Article 11 of the Limitation Act does not apply to the suit as it was not a suit to establish any right denied to the plaintiff by the original order on the claim petition but it was a suit to set aside the appellate order passed in the Letters Patent Appeal and hence the Article 13 of the Limitation Act was the article applicable.