DURAG DAS Vs. GORI MAL

JUDGEMENT

(1.) This is a second appeal in which the following two points have been raised: (1) Is an order dismissing an objection under the proviso to Rule 58, Order 21 on the ground that it is filed intentionally or unnecessarily late, an order which comes under Order 21, Rule 63 and subject to the result of any suit instituted under that rule, a conclusive order? (2) Does such an order prevent the objector from raising a claim again in the capacity of a defendant?

(2.) The facts in the present case are as follows:

(3.) One Sarnam made a usufructuary mortgage of property in list (B) of the plaint with the appellant, defendant 1. Durag Das. The plaintiff-respondent obtained a simple money decree against Sarnam and in execution of that decree brought the property in list (A) to auction sale and purchased it himself. During the pendency of the execution proceedings Durag Das, the appellant purchased the property on 27 April 1919, from Sarnam. The appellant filed an objection to the attachment and sale on the ground that he had purchased the entire mortgaged property. That objection was summarily rejected on 14 September 1920 on the ground that there had been unnecessary delay on the part of the objector in filing the objection. It is admitted that the objector did not bring any suit to contest the dismissal of his objection and the period of limitation of one year has long ago elapsed. It is claimed by the learned Counsel for the appellant that the dismissal of an objection under the proviso to Rule 58, Order 21, does not come under Rule 63 of that order. For this purpose he relies on the wording of Rule 63. We are unable to see that there is anything in the wording of Rule 63 which supports this contention. He relied on the following authorities: