SATISH CHANDRA RAY Vs. JOY CHANDRA ROY

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff against a judgment and decree of the First Additional District Judge of Dacca, affirming a decision of the Subordinate Judge. It is unnecessary to state the facts of the suit in detail. The facts relevant for the purpose of the appeal may be shortly stated thus--the defendant obtained a decree for possession of certain immoveable properties in which an order had been made under the old C.P.C. for ascertainment of mesne profits in the Execution Department. When an application was made for attachment before judgment in the matter of ascertainment of mesne profits in the execution proceedings a claim was preferred by the plaintiff which was dismissed on the 28th of February 1914. The execution case was then dismissed on the 22 January, 1915. The defendant-respondent ultimately succeeded in obtaining an order from the Appellate Court allowing their right to prosecute the application for ascertainment of mesne profits in 1918. The property appears to have been attached again by the defendant and another claim was preferred by the plaintiff which was dismissed on the 2 August, 1921. The plaintiff then brought the suit on the 4 August 1921 under the provisions of Rule 63, Order XXI, C.P.C. Both the Courts below have held that the suit is barred by limitation as not having been brought within one year from the 28 February 1914 when the plaintiffs? claim was first rejected.

(2.) It seems to me that when the execution case was dismissed on the 22 January, 1915 the result of which was that the property was released from attachment it was not incumbent on the plaintiff to bring a suit under Order XXI, Rule 63, C.P.C. in order to set aside the order rejecting his claim. When a fresh attachment was made after the decision of the Appellate Court it was open to the plaintiff to prefer a fresh claim as was done in the present case; and the suit having been brought within the period of limitation after the order of the 2nd August 1921 the suit is not barred. It is unnecessary to discuss the questions raised in this appeal in detail as these questions have been fully discussed in the case of Najimunnessa Bibi v. Nacharaddin Sardar 83 Ind. Cas. 233 : 51 C. 548 : 39 C.L.J. 418 : A.I.R. 1921 Cal. 744. The judgments and decrees of the lower Courts must, therefore, be set aside and the case sent back for trial on the merits to the Court of first instance. Costs of this hearing as well as the costs of the Courts below will abide the result of the final decision.

(3.) No order is necessary in the Rule. Cuming, J.