BIR BIKRAM KISHORE MANIKYA BAHADUR Vs. KHALILER RAHAMAN

JUDGEMENT

(1.) This appeal is against an order rejecting an application filed by the appellant under the provisions of Section 47, Civil P.C. The appellant instituted a suit for ejectment against the respondent. He lost it and was made liable for costs. Why the appellant does not pay this petty sum and put an end to this matter, we cannot conceive. Be that as it may, he paid nothing and the respondent eventually took out execution. Two grounds have been taken, the first being that the application is barred by limitation and the second being that consent is necessary under Section 86, Civil P.C. Prima facie the application for execution was barred by limitation. The respondent attempted to save limitation by an allegation that a sum of Rs. 3 had been paid out of Court. This allegation has not been specifically investigated. A notice for which there is no provisions in the Code, was served on the appellant's agent. Then a notice under Order 21, Rule 22 was issued on 1 March 1932. The date fixed for the filing of an objection by the appellant was 29 March 1932. The appellant did not appear and the Munsif passed an order in these terms: "The case is dismissed for default without cost." The present execution was started at a later date.

(2.) The contention of the respondent is that it is no longer open to the appellant to raise the plea of limitation. In our judgment that contention cannot be supported. As I have already noted, it was open to the appellant to file an objection on 29 March 1932 and he did not do so. But the Munsif did not proceed to pass any order which must by necessary implication show that he thought that the decree-holder was entitled to go on with the execution. The only thing which had to be done on 29 March was to see whether the appellant filed an objection or not. The order dismissing the case for default was therefore quite unreasonable. It cannot be interpreted as having any definite meaning. As there is nothing to show that the question of limitation was by implication decided, it is still open to the appellant to raise it. On the second point both the Courts below held that no consent is necessary because the respondent is a tenant of the appellant and therefore is entitled to institute a suit without consent under the provisions of Sub-section (5), Section 86. In our opinion, sub Section (5), is entirely distinct from Sub-section (3). The two sub-sections were really dealing with two quite distinct matters. In view of the plain terms of Sub-section (3) we are of opinion that the consent referred to is necessary before the respondent can proceed against the property of the appellant.

(3.) This appeal must therefore be allowed and the orders of the Courts below dismissing the appellant's objection must be set aside. The appellant must be allowed to file an objection on the ground of limitation, and the matters will be determined upon such evidence as the parties may adduce. The Munsif is also directed to give the respondent requisite time to apply for the consent referred to in Section 86 of the Code. We make no order as to costs. R.C. Mitter, J.