SURAMA SUNDARI DEBI Vs. KIRANSHASHI CHOWDHURANI

JUDGEMENT

(1.) This is an application under Section 115, Civil P.C. The facts in short are that there was a decree against the deceased husband of the petitioner. The property in suit was attached in November 1933. In December 1933, the petitioner made a claim to say that the property did not belong to her husband but belonged to herself. On 3 February 1934, her application was dismissed for default. Thereafter, on 21 March 1934, the property was sold in auction and purchased by the opposite party. The sale was confirmed on 21 January 1934. Then the opposite party auction-purchaser applied under Order 21, Rule 95, Civil P.C. on 31 May 1934 for delivery of possession to him. The Court issued a writ for delivery of possession. Possession could not be given on account of resistance by the petitioner. Thereupon on 15th June 1934, the opposite party made an application under Order 21, Rule 97. That application was dismissed for default on 10 November 1934. Within three years thereof, namely on 10th April 1937, the auction-purchaser made a fresh application for delivery of possession under Order 21, Rule 95. On this occasion too, the delivery was resisted by the petitioner. Thereupon the opposite party made an application on 13 May 1937 under Order 21, Rule 97. The Munsif on hearing the parties has allowed the application.

(2.) It is urged for the petitioner that the opposite party was not entitled to file a second application under Order 21, Rule 95 when the first application had failed. No authority is cited for this wide proposition that the auction-purchaser is limited to one application under Rule 95 of Order 21, that if that application fails, he is not entitled under the law to make a second application under Rule 95. On a plain reading of the section, such a proposition cannot be accepted. It has been held in numerous cases that a second application may be made if it is otherwise within time.

(3.) The next point is that assuming that the second application under Rule 95 was maintainable, the application made on 13 May 1937 under Rule 97 was barred by limitation, inasmuch as the second resistance was made by the same petitioner who had made the first resistance on 3 June 1934 and the limitation of one month will run from 3 June 1934. This is opposed on the other side. Both sides have quoted numerous cases but on a plain reading of Art. 167, Limitation Act, it appears that the period of 30 days is to be counted from the date of the resistance or obstruction of which complaint is made. In this case, complaint was made of the resistance made on 24 April 1937 and it being within one month of that act of resistance, the application was within time. The rule is therefore discharged with costs, hearing-fee one gold mohur.