NOGENDRA LAL CHOWDHURY Vs. FANI BHUSAN DAS

JUDGEMENT

(1.) The only question to which we need address ourselves in this appeal is the question of limitation. In the course of certain execution proceedings the property now in dispute was attached. The present plaintiff preferred a claim to the property under Order XXI, Rule 58, Code of Civil Procedure. The claim was rejected and he brought this suit to establish his title to the property and for consequential reliefs. It is not disputed that if the order made in the execution proceedings rejecting the claim was an order within the scope of Order XXI, rule, 63, the present suit is a suit of the nature contemplated by that rule and is governed as to limitation by Article 11 of the Limitation Act of 1908. The period of limitation prescribed in such a suit is one year from the date of the adverse order in the claim case. Here the suit was instituted more than a year after the claim was rejected. The defend-ant No. 1 pleaded, therefore, that the suit was out of time. The contention put forward on the plaintiff s behalf is that the claim having been rejected for default and without investigation, the order of rejection was not an order within Order XXI, Rule 63 and Article 11 had no application. The contention proved successful in the Courts below and the appeal before us has been preferred by this defendant No. 1. Now it may be useful to cite in this connection the language used by Lord Hobhouse in delivering the judgment of the Privy Council in the case of Sardhari Lal v. Ambika Pershad 15 I.A. 123 : 15 C. 521 : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 : 7 Ind. Dec. (N.S.) 931. Lord Hobhouse said: "The order" that is, the order in the claim case to which he was referring, "was made and it was an order within the jurisdiction of the Court that made it. It is not conclusive; a suit may be brought to claim the property, not with-standing the order; but then the law of limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settlement of question of title raised at execution sales and for that reason a year is fixed as the time within which the suit must be brought."

(2.) If that was the policy of the law under the Civil Procedure Cede of 1877 and the Limitation Act of the same year, it is still more emphatically the policy of the law under the present Civil Procedure Code and the present Limitation Act.

(3.) On the plaintiff s behalf reliance has been placed on decisions of this Court under Article 11 of the Limitation Act of 1877 but those decisions are no longer of authority because the language of Article 11 has been altered in the Act of 1903. The change made follows the change made in Section 283 of the Code of 1832 now represented by Rule 63 of Order XXI. Section 283 ran as follows: "The party against whom an order under Section 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute." Rule 63 on the other hand says that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute. The specific reference to the previous sections or rules has been omitted. A corresponding change has been made in Article 11. The ground, therefore, on which the cases under the previous Limitation Act and the previous Code were decided, that the section specifically referred to in Article 11 and Section 283 of the Code required some investigation to be made, is gone. Rule 63 of the present Civil Procedure Code and Article 11 of the present Limitation Act are quite general in their terms. All that is now necessary is that a claim should be preferred under Rule 58 and that there should be an order either allowing or rejecting it. The party against whom the order is made may then bring a suit in the language of Rule 63 "to establish the right which he claims to the property in dispute" or in the language of Article 11 "to establish the right which he claims to the property comprised in the order", and the suit must be brought within the year allowed by Article 11.