ALAGARSWAMI THEVAN Vs. RAMABADRA NAIDU GARU

JUDGEMENT

(1.) In the suit from which this second appeal arises the appellants were defendants. The plaintiff's action was for recovery of possession of the suit property and mesne profits on the ground that in a previous litigation between the parties which finally ended in Second Appeal No. 457 of 1915 on the file of this Court the plaintiff's title to the property was declared and recognized. This suit, however, was rendered necessary because, taking advantage of the fact that in the District Munsif's Court in that litigation the defendants who were the plaintiffs obtained a decree, they had gone soon after to the Magistrate and on the basis of that decree obtained possession of that property with reference to which the Magistrate had made certain orders and appointed a Receiver under Section 146, Criminal P.C.

(2.) Three contentions have been raised before us by the learned Counsel for the appellants. His contention was that the plaintiff's suit is barred by the law of limitation. In this connexion it may be noted that, though limitation has been raised perhaps as usual in most cases by the defendants in their written statement the exact manner in which it is now contended on their behalf that the claim is barred by limitation has not been indicated. The learned Counsel's argument was this: it was really twofold. First it is stated that on 19 April 1915, the Magistrate made the order by which possession of this property was given to the present defendants. It was argued by him that under Art. 47, Lim. Act, it was incumbent on the plaintiff to institute a suit within three years of the date of the order of the Magistrate and that otherwise the suit should be held to be barred by the law of limitation. There was some question raised on behalf of the respondent by Mr. Rajah Aiyar that the real date of the order was not the 19 April, but the 19 November, and, if the latter date should be the real date, no question of limitation arises with regard to this order of 19 April, Ex. G and the suit was within three years of 19 November 1915. There is, no doubt, in the record some doubt and discrepancy with regard to the date of this document? It becomes material to observe that the plea of limitation raised by the defendants was not directed with regard to this order or the date thereof specifically and that, therefore, the plaintiff had no notice that the date of this order would become in any manner important to be considered. We may, however, observe generally speaking though, no doubt, questions of limitation may be allowed to be raised even in second appeal and even though not raised originally in the defence, still, if the decision on the question of limitation should depend ultimately on certain facts and if the other patry to the action should have had no notice of the contentions of the party setting up the plea of limitation with regard to these facts, it would be unjust to allow such a plea to be raised at a very late stage. In this ease, however, there seems to be really no doubt that the 19 April was the real date of the order. But then comes the question whether this Art. 47 is the article applicable to this present action. The article says that the suit must not only be "one to recover property comprised in an order of the Magistrate" -and so far as that is concerned this suit is alright-but that the parson suing, that is, the plaintiff must be a parson bound by an order respecting the possession of immovable property made under the Criminal Procedure Code, 1898.

(3.) Taking those words substantially, there can be very little doubt that the suit contemplated by the first column of that article is a suit virtually to set aside the effect of a magisterial order with regard to the possession of immovable property. Now, can this suit be so described? It seems impossible to regard this suit as capable of being so described, What happened is this. An original order of the Magistrate was passed in 1909 and thereupon the present defendants as plaintiffs filed a suit and obtained a decree in the District Munsif's Court. They produced this decree before the Magistrate who had previously made the order and that Magistrate, acting on this decree of the District Munsif gave possession to them. The order, therefore, of the Magistrate cannot for the purpose of this article be regarded as an order promulgated under the Criminal Procedure Code in the interest of public peace. Though there may be some room for the contention, having regard to the words "respecting possession of immovable property" and so on, that even such an order would be comprised within the terms of the first column of Art. 47, still the expression any person bound by an order respecting the possession" puts it beyond all doubt that the nature of the order contemplated by this article must be one by which under the powers given by the Criminal P. C. the Magistrate issues certain orders in the interests of public peace. When the Magistrate, however, is merely carrying out by his orders the decrees of civil Courts, it seems to me to be clear that such an order is not one comprised in or contemplated by Art. 47. Now again, can the plaintiff in this case be regarded as a person bound by an order respecting the possession of immovable property? The matter was being litigated at the time in the civil Court and the expression bound in the article has clear and undoubted reference to the order being binding on a person subject to adjudication by the civil Court. Therefore, when a person is a party to a litigation in a civil Court and an order is made by the Magistrate with regard to the possession of immovable property as the result of the adjudication in the civil Court, such a person cannot apply or properly be described as a person bound by the order of the Magistrate. Again if the whole of the language of the article should be taken into consideration it is clear that the nature and scope of the suit intended to be comprised in the article must be one whose main object is to set aside the effect of the summary order of a Magistrate with regard to possession in the interest of public peace. In this suit the cause of action really is the declaration made by the civil Court in the previous action and, therefore, also the proper article applicable to this suit is not, in our judgment, Art. 47. Therefore, the contention that the claim is barred by limitation based on the order, Ex. G in the case, fails.