DHARAPURAM JANOPAKARA NIDHI, LIMITED, BY ITS PRESENT SECRETARY A ADISESHA AIYAR Vs. KLAKSHMINARAYANA CHETTIAR

JUDGEMENT

(1.) I his appeal arises out of a suit instituted by the appellant, under Order 21, Rule 63, Civil Procedure Code, to establish his right to attach and bring the suit properties to sale in execution of a decree for money which he had obtained in 1917 against one Syed Abdul Razak Sahib (since deceased). When, the suit properties were attached in execution of that decree in November, 1929, the respondent preferred a claim, which was allowed on the ground that he had been in possession of these properties in his own tight since 1911; the executing Court declined to go into the question of title. In this suit which was instituted in consequence of that order, the lower appellate Court has also found that though the properties in dispute belonged at one time to Syed Abdul Razak Saheb, he had agreed to sell them to the respondent, received the consideration and put him in possession in 1911 and that the respondent has ever since continued in possession. On this finding it would have followed that though title under the sale did not pass to the respondent, because of the absence of a registered sale deed, he had acquired a title by adverse possession many years before the date of the attachment.

(2.) To avoid the above result, the appellant relied on certain proceedings that took place in 1917, between the respondent and another decree-holder, when the latter attached these properties in execution of a decree that he had obtained against Syed Abdul Razak. A claim petition then filed by the present respondent was dismissed on 9 July, 1917; and, it has been contended that as no suit was filed by the respondent within a year of the date of that order to set it aside, he is not entitled to rely on any possession that he might have had prior to 9 July, 1917, in support of his plea of adverse possession. To complete the narrative and to assess the value of the above contention, I may add that though, on the dismissal of the claim petition in 1917, the properties were sold in execution of the third party's decree, that sale was set aside on objections raised by the judgment-debtor and the decree of the third party was otherwise satisfied on 10 August, 1918, so that it became unnecessary to take any further proceedings in execution of that decree.

(3.) Both the lower Courts dismissed the appellant's suit and their decision was confirmed in second appeal by Horwill, J., who however granted the appellant leave to appeal under Clause 15 of the Letters Patent. In view of the state of the authorities bearing on some of the questions arising in the appeal, the case has been directed to be posted before a Bench of three judges.