NATURANJERI ISMALKUTTY S SON AHMEDKUTTY Vs. CHERUKANA MOIDUTHY

JUDGEMENT

(1.) Plaintiff is the appellant. This second appeal arises out of a suit instituted by him for partition. The plaint property belonged to one Moideen. He died leaving a widow and two children, Mammakutty a son, and Biyyakutty a daughter. Mammakutty died leaving as his heirs the 2nd defendant his widow, and the 1 defendant his daughter. The 2nd defendant instituted a suit for partition (O.S. No. 407 of 1903) and obtained a decree. In the meanwhile, Mammakutty had mortgaged his interest to one Kunheen in May, 1899, and the plaintiff had purchased that interest. As such purchaser he brought a suit (O.S. No. 409 of 1919) on Mammakutty's mortgage and obtained a decree for the sale of Mammakutty's share in the properties. In execution of that decree he himself purchased the said share in Court-auction and obtained delivery of the plaint properties. The 3 defendant in the present suit having obtained an interest in the properties from some of the defendants in O.S. No. 407 of 1903, put in a petition for re-delivery of the plaint properties alleging that she also had obtained some interest in them (see M.P. No. 3101 of 1916). The Court then ordered redelivery of the properties to the 3 defendant under Ex. K on the 25 of June, 1917. Later on the plaintiff in his own turn got symbolical delivery of these properties (see Ex. L, dated the 3 of October, 1918).

(2.) It was argued by the 3 defendant, who is the contesting defendant in the suit, that since the present suit by the plaintiff has been instituted more than a year after the order in M.P. No. 3101 of 1916 (Ex. K) the suit is barred under Art. 11-A of the Limitation Act, that the order under Ex. K is final under O. XXI, Rule 103 of the Civil Procedure Code and that the present suit is not maintainable. Accepting the argument, the learned Subordinate Judge reversed the District Munsif's decree and dismissed the plaintiff's suit.

(3.) In second appeal it is argued on behalf of the plaintiff-appellant that the lower Appellate Court has totally misunderstood the nature of the proceeding which led to the passing of the order Ex. K that Art. 11-A has really no application to the facts of the present case and that the plaintiff is entitled to get Mammakutty's share of the suit properties which he purchased in auction by instituting a suit for partition which is the only remedy that lie is entitled to pursue. We must accept this argument. The lower Appellate Court has misunderstood the nature of the application made by the present 3 defendant in M.P. No. 3101 of 1916. It was not a claim petition put in by a stranger. In O.S. No. 419 of 1911, which, it will be remembered, was instituted by the present plaintiff and in which he got a decree for the sale of Mammakutty's share, the present 3 defendant was a party, viz., 5 defendant. Exhibit K makes that very dear. The application M.P. No. 3101 of 1916 was, therefore, one between parties to a suit under Section 47 of the Civil Procedure Code and as such it is clear that Order XXI, Rule 103 of the Civil Procedure Code and Art. 11-A of the Limitation Act are altogether inapplicable. In this view, the arguments addressed to us and the cases quoted on the assumption that those provisions of law apply to this case need not be considered.