JAMUNA SONAR Vs. ATMA RAM OJHA

JUDGEMENT

(1.) This second appeal arises out of a suit which was dismissed by the Courts below on the ground that it was barred by limitation under Art. 11, Limitation Act. In the Courts below the suit was mainly contested by defendant 1, liquidator of the Friends Co-operative Society at Dumraon. This defendant filed a certificate against defendant 4 and had it served on him on 30 June 1930, under Section 7, Bihar and Orissa Public Demands Recovery Act, 1914. Defendants second party obtained a money decree against defendant 4 and other defendants (defendants third party) who form a joint Mitakshara family. In execution of this money decree, defendant 1 filed an objection laying claim to the property sought to be attached and sold, on the strength of the certificate under which notice was issued under Section 7 of the Act on 30 June 1930 and it was ordered that the sale in execution of the money decree would be held subject to the charge under the certificate. Execution of the money decree was levied on 8 December 1930, the sale proclamation was issued on 18 February 1931 and the plaintiff purchased the property on 8 April 1931.

(2.) After this purchase the plaintiff filed an objection on 25 May 1931, in the certificate proceeding that the certificate debtor (defendants) had no interest left in him in the property attached, but the objection was rejected and the property specified in Schedule 2 was sold to defendant 1 on 4 June 1931, and delivery of possession was given of it on 13 September 1931. The sale held under the money decree on 8 April 1931 was confirmed, in respect of 3 out of the 4 houses involved on 5 August 1931, and a sale certificate was granted to the plaintiff on 2 July, 1932, and delivery of possession was given to the plaintiff on 24th January 1933. Resistance was offered to the plaintiff in taking possession of the property, and on 7 March 1933 he filed a petition under Order 21, Rule 97, Civil P.C. The objection was allowed and the plaintiff was directed to take out a fresh dakhaldehani in respect of 15/16 share of the houses and to be in possession of it jointly with defendant 1, but this order of the Munsif was ultimately set aside by the High Court on 9 October 1933. The plaintiff purchaser under the money decree thus instituted the present suit for declaration of his title to and confirmation of possession over the entire property purchased by him at the execution sale on 8 April 1931, and prayed that, if it were held that defendant I had any interest in the property, he might be put in possession jointly with defendant 1.

(3.) The Court below has dismissed the suit of the appellant on the ground that it was barred by limitation not having been filed within one year from 25 May 1931 on which date his objection before the Certificate Officer was rejected, as contemplated by Section 25, Public Demands Recovery Act, and Art. 11, Limitation Act. Mr. Mahabir Prasad, appearing on behalf of the appellant, urges that on 8 April 1931 defendant 1 had no interest in the property involved and therefore his application to the Certificate Officer resulting in the order of 25 May 1931 was misconceived, as Section 22 of the Act requires that the claimant or objector to a certificate proceeding must adduce evidence to show that, where immovable property is concerned, at the date of the service of the notice under Section 7 he had some interest in, or was possessed of, the property attached. He has referred to the decision in Atarmoyi Dasi V/s. Ramananda Sen A.I.R (1923) Cal. 601 where a person in possession filed an application under Order 21, Rule 100, Civil P.C. for recovery of possession of the property from one who had obtained symbolical possession of that property after purchase in execution of a decree, and the application was dismissed on the ground that his possession had not been disturbed.