BARANAGORE JUTE FACTORY CO LTD Vs. RAJKUMAR RAI

JUDGEMENT

(1.) THIS is a second appeal from an order of the District Judge of the 24-Pergunnahs in a matter of resistance to execution. THIS appeal was registered on 9 May 1908. As there was a question whether an appeal lay the appellants on 6 April 1908 ex majori cautela applied for and obtained a rule nisi under Section 622 of the C.P.C. of 1882, calling on the opposite party to show cause why the order of the District Judge should not be set aside. It was ordered that the rule should be brought on for disposal along with the appeal. The acts are not in dispute. Raj Kumar Rai, the respondent, had sued Akhoy Kumar Ghosh and Kali Charan Banerjee in ejectment and obtained a decree. On 4 December 1906 he applied for execution by delivery to him of possession of a piece of land. A writ issued and on 2 January, 1907 the peon deputed to serve the writ reported that resistance to execution had been mad on behalf of the Baranagore Jute Factory Co. Ld., the appellants, who claimed the land. The respondent took no further steps to enforce that writ. Ho then appears to have made an application against Mr. W.S. Malcolm, the manager of the Appellant Co., but that was dismissed on 16 March 1907, on the ground that the Appellant Co. were in possession and that against Mr. Malcolm there was no cause of action. On 8 May 1907 he again applied for execution and was granted a fresh writ. In execution of the second writ resistance was again made on behalf of the appellants on 9 June 1907 and such resistance was reported by the peon on the following day. On 12 June 1907 the respondent applied to the Court for an investigation under Section 328 of the C.P.C. THIS was registered on 13 June 1907 and notice ordered to issue on the opposite party for hearing on 6 July 1907. On the application of the appellants the hearing was postponed till 13 July 1907. On that day the appellants filed a written statement. It appears that as the written statement did not definitely state the title set up by the appellants, the case was at their instance again adjourned to 27 July 1907 to enable them to produce witnesses and state definitely the nature of their title. On 27 July 1907 it was again adjourned to 10 August 1907. On 10 August neither party adduced evidence, but the Court heard arguments on either side. Judgment was reserved, and on 12 August 1907 the Munsif dismissed the application on the ground of limitation, holding that the time ran from 2 January, 1907, the date of the first resistance. Against this order the respondent appealed to the District Judge who held that the time ran from the date of resistance to execution of this particular writ, namely, 9 June 1907. He accordingly allowed the appeal with costs.

(2.) A preliminary objection was taken by the learned Advocate-General, who appeared for the respondent, that no second appeal lay in this case. His point was that the order of the Munsif was equivalent to an order rejecting a plaint; that from such an order an appeal lay to the District Judge, but that from the order of the District Judge which was equivalent to admitting a plaint, no second appeal could lie. We do not think that that is the correct view to take of the nature of this application and the procedure upon it. If the Munsif had thrown out the application on presentation there might have been some force in the argument, He did not, however, do this. He registered it, and issued notice on the opposite party. The opposite party was called on for a written statement which was put in and the matter was several times adjourned. It then came on for final disposal and was dealt with by the Munsif as a regular suit. It is true that he dismissed it, deciding against the decree-holders on the preliminary point of limitation, but the case was none the less finally heard and determined. Under these circumstances it appears to us that the Munsif's order had (in the words of Section 331) the same force as a decree and was subject to the same conditions as to appeal or otherwise." That being so, the Order of the District Judge was in effect an order under Section 562 reversing the order of the Munsif on the preliminary issue, and remanding the application for trial on the merits. From such an order it is clear that a second appeal lies. If, as we think, an appeal lies to this Court, no question of revision under Section 622 of the C.P.C. or interference under Section 15 of the Charter can arise. This view was not wholly acceptable to the learned pleaders who addressed us for the appellant. They would have preferred, as we gather, that the matter should be dealt with under Section 622 of the C.P.C. or Section 15 of the Charter. But the appellants can hardly be heard to contend that the appeal which they themselves have tiled is not competent. In the view that we take it is unnecessary to consider the argument put forward by the learned pleader for the appellants, viz., that the Munsif's order was not appealable and that the order of the District Judge was without jurisdiction. It may, however, be noted that to come to such a conclusion we should have to say that the cases of Fanindra Deb Raikut V/s. Rani Jugodishwari Babi 14 C. 234 and Gopala V/s. Fernandes 16 M. 127 were wrongly decided. Turning to the merits the sole point for our determination is whether the present application under Section 328 is barred by limitation. Must the time be reckoned from the first resistance to writ or from the particular resistance of which the decree- holder complains? There is express authority for the proposition that the particular resistance must be regarded as the starting point, see Ramasekara Pillai V/s. Dharmaraya Goundan 5 M. 113 and Narain Das V/s. Hazari Lal 18 A. 233 and so far as we have been able to discover there is no case in which a directly contrary decision was arrived at. There are, no doubt, cases which decide that a purchaser who has applied for possession under Section 318 of the C.P.C. and been resisted, but who has not made a further application under Section 335, cannot be allowed to apply again for a fresh writ under Section 318. These cases are, however, distinguishable from the present. Not only is a purchaser on a different footing from a decree- holder in matters of execution, but the procedure under Section 335 differs very materially from that under Section 331. It might be said that the Court ought not to issue a second writ under Section 318 to a purchaser who has not availed himself to the full of the special procedure in execution allowed to him, though in Vinaykarav Amrit V/s. Devrao Govind 11 B. 473 Sir Charles Sargent appears to have contemplated the issue of a second writ to a purchaser if the second obstruction complained of was by a different person. A decree-holder, however, is, ordinarily speaking, at liberty to apply for execution as often as may be necessary and provided such application is not out of time or for some other special reason bad in law, it is usually granted. In this particular case the Court issued a second (if not a third) writ in favour of the decree-holder. It cannot be said that it had no jurisdiction to do so, and if the decree-holder was given this fresh writ, there seems to be no good reason for depriving him of the remedy which the law allows in the case of resistance to that writ. There is nothing in the Code which confines the decree-holder to one writ under Section 318, while the words of Section 328 such resistance or obstruction" clearly indicate that the month is to run from the time of particular resistance or obstruction in respect of which the decree-holder is complaining. For these reasons we agree with the decisions in the Madras and Allahabad High Courts above referred to and dismiss this appeal with costs. Pleader's fee 5 gold mohurs. The rule also must be discharged with costs, 3 gold mohurs.