GANESH KRISHNA KULKARNI Vs. DAMOO NATHU SHIMPI

JUDGEMENT

(1.) The facts upon which this second appeal has to be decided are these. The plaintiffs sued to recover a sum of money on a mortgage bond passed on the 22nd December 1882 and their suit has been dismissed as being barred by time. It appears that in a Darkhast No. 458 of 1883, the mortgaged property in dispute had been attached at the instance of the defendants father under a decree obtained by him in a suit of 1882. By Miscellaneous Application (No. 39 of 1883), the plaintiffs father applied to the Court that the property should be sold subject to his mortgage lien. But, in June 1883, the Court rejected this application, and ordered that the property should be sold free from the alleged mortgage in favour of the plaintiffs father. In consequence of this order the defendants met the plaintiffs present suit with the objection that it was out of time, inasmuch as it. was filed more than a year after the date of the Court s order rejecting the plaintiffs father s application, and that order was, according to the defendants, to be referred to Section 283 of the Code of Civil Procedure of 1882, read with Article n of the Indian Limitation Act.

(2.) Both the lower Courts have acceded to this contention of the defendants, and the question is whether they were right in so doing, We have looked into the proceedings connected with the plaintiffs father s application, (Exhibit 25) and from the terms of the application itself, as well as from the circumstances surrounding its presentation, it is clear that the application must be referred to Section 287 of the Code of 1882, and not to Section 278. The application in terms professess to be made in response to a notice from the Court inviting the assertion of any claims of right by persons conceiving themselves to possess such claims. It is not questioned that if the application falls under Section 287, then the one year s limitation prescribed by Article 11 of the Indian Limitation Act in regard to suits against orders under Section 283 is inapplicable. Furthermore, we are of opinion that, apart from the character of the application itself, the Court s order cannot properly be referred to Section 283. In, this case, as we have said, the order was that the attachment should proceed free from the lien or mortgage claim. With such an order as that, Section 282 seems to us to have no concern. Section 282, as we read it, is an enabling section, empowering the Court to pass a certain specified order on the fulfilment of two specified conditions. The conditions are: (i) that the Court is satisfied that the property is subject to a mortgage or lien in favour of some person not in possession; and (2) that the Court in its discretion thinks fit to continue the attachment: Where those two conditions are satisfied, then the section empowers the Court to continue the attachment subject to the mortgage or lien. But an order which refuses to acknowledge the mortgage or lien, and directs the continuance of the attachment free from such mortgage or lien is, in our opinion, incapable of being ascribed to this section. That is the view which was accepted by Stanley C. J. and Burkitt J. in Durga Prasad v. Mansa Ram (1994) 1 A.L.J. 531, 536, where the learned Chief Justice says :-"Section 282 only applies to the case where a Court is satisfied that property is subject to a mortgage or lien, and in that case it enables the Court to continue the attachment of that property or to dissolve the attachment as in its discretion it may think fit, but if it do continue the attachment, it must continue it subject to the mortgage or lien which has been established to the satisfaction of the Court". We entirely agree with this explanation of the purview of Section 282, except that we are, with respect, unable to follow the necessity for the words;-"or to dissolve the attachment as in its discretion it may think fit".

(3.) Mr. Bakhale for the respondents contended, however, that the point under discussion has been decided in his favour by a ruling of a Bench of this Court in Nemagauda v. Paresha (1897) I.L.R. 22 Bom. 640 and it is true that the law as to the position of an unsuccessful objector or intervenor is at p. 643 of the report stated so broadly that some countenance for Mr. Bakhale s argument may be extracted from the passage, But if the facts of the case be considered in reference to the actual decision, it is, we think, clear that the ruling is of no authority in the circumstances now before us. For the question debated in Nemagauda v. Paresha was not whether the party there concerned, namely, the respondent, was or was not barred by an order properly to be ascribed to Section 282, but whether, the bar imposed by an order under that section was or was not removed by reason of the fact that the appellant- auction-purchaser s suit against the respondent was brought within twelve months from the Court s order; in other words, for the purposes of that case it was assumed that the respondent was an unsuccessful intervenor or objector under;ss. 278 to 282. But the point there assumed is exactly the point which in this case falls to be decided. We infer, therefore, that there is nothing in Nemagauda v. Paresha to debar us from deciding the present appeal on its merits, and for the reasons which we have given, we think that the lower Courts were wrong in holding that the order made by the Court was an order under Section 282. It follows that the appeal must be allowed, the lower appellate Court s decree must be reversed and the suit remanded to be tried on its merits. Costs will be costs in the suit.