Gend Lall Tewari And Anr. vs Denonath Ram Tewari And Ors. on 11 June, 1885

Calcutta High Court
Gend Lall Tewari And Anr. vs Denonath Ram Tewari And Ors. on 11 June, 1885
Equivalent citations: (1885) ILR 11 Cal 673
Bench: R Garth, Beverley


Richard Garth, C.J. and Beverley, J.

1. This was a suit brought by the plaintiffs to recover possession of certain lands, which, on the 16th of August 1878, they had purchased from the defendants 14 and 15.

2. In the first Court they obtained a decree; but on appeal to the Judicial Commissioner, he held that neither the plaintiffs, nor those under whom they claimed, had been in possession of the land in question within 12 years before suit. For this reason the suit was dismissed.

3. On appeal to this Court it has been contended that the lower Appellate Court was wrong upon this ground.

4. In the year 1876, before the plaintiffs’ purchase, one Denonath Bam Dobey obtained a decree against the defendants 14 and 15, and under that decree attached in execution the lands which are now in dispute, as being the property of those defendants. Upon this, the defendants 1 to 13, claiming the lands as their own, objected in the execution proceedings under Section 246 of the Procedure Code of 1859, that the lands should be released from attachment. That claim was heard and rejected.

5. After this, in the year 1878, by permission of the Court, the lands attached were sold by the present defendants, 14 and 15, (the judgment-debtors in the former suit) to the plaintiffs in this suit. Nothing further was done by the present defendants 1 to 13 to prevent the sale to the plaintiffs, nor to renew their claim to the attached property.

6. Under these circumstances the present plaintiffs contend that, as between them and the defendants 1 to 13, the order which was made in the execution proceedings in 1876 debars those defendants from contending that the defendants 14 and 15 were not in possession of the lands in question at the time when the order was made. It is said that, having regard to the terms of Section 246, the claim of the defendants 1 to 13 would not have been disallowed, unless it had been found by the Court that the lands attached were in the possession of the judgment-debtors; and that whatever the form of the order may have been, it could but have had that meaning; and as the defendants 1 to 13 did not bring any suit to establish their right within a year from the date of the order, the effect of it cannot be disputed now.

7. In support of this contention we have been referred to several authorities, and, amongst others, to a case of Krishnaji Vithal v. Bhaskar Bangnath I.L.R. 4 Bom. 611. In that case one V had obtained a decree against Waman and had attached certain lands as being Waman’s property. In this state of things Waman’s five brothers applied to remove the attachment under Section 246 of the Code. Their application was rejected on the 24th of July 1875; and the property was sold by the Court to K on the 17th of February 1876. Waman’s brothers (the plaintiffs) then brought the suit on the 17th of March 1877, against V and K (the judgment-creditor and the auction-purchaser) claiming the lands as the ancestral property of themselves and their brother (the judgment-debtor in the former suit), and praying that they should be confirmed in possession of their shares of the property, inasmuch as it was not liable to be sold in execution for their brother’s private debts.

8. The Subordinate Judge held that their suit not having been brought within one year from the date of the order of the 24th of July 1875, was barred by Article 15 of the Limitation Act of 1871, which imposes a limitation of one year upon suits to set aside an order of a Civil Court in any proceeding other than a suit.

9. The District Judge on appeal held that the suit was not brought to set aside the order of 1875, but the sale of the property, which took place in 1876; and as that sale was not confirmed within one year before the suit was brought, he considered that the suit was not barred, and ordered it to be tried on the merits.

10. The case was then appealed to the High Court, and it was held by the Chief Justice and Mr. Justice Melvill, in accordance with other cases decided in the Bombay Court, and with Settiappan v. Sarat Singh 3 Mad. H.C. 220 that the effect of the last clause of Section 246 of the old Code of 1859, was to exclude a party to an investigation under that section from any other remedy than the one thereby provided for him, namely, a regular suit to be brought to establish his right within a year of the time when the order is made against him in the execution proceedings.

11. The same Court also considered that the Subordinate Judge was right as to the period of limitation for such a suit, although by the Limitation Act of 1871, the last clause of Section 246 was repealed, they held that Article 15, relating to suits to set aside an order of a Civil Court, was substituted for the special limitation in Section 246, which had been repealed; and consequently that any suit by a party defeated in the execution proceedings “to establish his right” must be brought within a year from the date of the order.

12. The result of this decision, and of others to the same effect, seems to be that any suit of any description, which may be brought by any party to execution proceedings under Section 246 of the Civil Procedure Code of 1859 “to establish hip right,” must of necessity be a suit “to set aside an order” within the meaning of Article 15 of the Limitation Act of 1871.

13. This view of the law is opposed to a long series of reported cases in this Court, which have decided that a suit brought by a party defeated in execution proceedings under Section 246 of the old Code, is not a suit, or at any rate, not necessarily a suit to set aside “an order of a Court” within the meaning of Article 15 of the Limitation Act of 1871, and that the proper period of limitation in such case depended upon the real nature of the suit itself, as provided for by other articles in the Limitation Act. See Koylash Chunder Paul Chowdhry v. Preo Nath Roy Chowdhry I.L.R. 4 Cal. 610; Luchmi Narain Singh v. Assrup Koer I.L.R. 9 Cal. 43; Gopal Chunder Mitter v. Mohesh Chunder Boral I.L.R. 9 Cal. 230 : 11 C.L.R. 363; Bessessur Bhugut v. Murli Sahu I.L.R. 9 Cal. 163 : 11 C.L.R. 409; and Brojomohun Bhutto v. Badika Prosunno Chunder 13 C.L.R. 139. We are of course bound by these authorities here, and we entirely agree with them. If the present plaintiffs or their vendors, the defendants 1 to 13, were bound to bring a regular suit under Section 246 for the purpose of establishing their title, and so relieving themselves from the effect of the order of 1876, there is still ample time for bringing such a suit.

14. But the plaintiffs, appellants, say that the mere fact of the order having been obtained operates as a res judicata as between them and the defendants 1 to 13, and estops those defendants from denying that the defendants 14 and 15, the plaintiffs’ vendors, were in possession of the property in question at the time when the order was made.

15. We think that the order can have no such effect. Even in the view which other High Courts appear to have taken of Section 246, the order would not operate as an estoppel against the defendants 1 to 13, until the time for bringing a suit to establish their right (whatever that expression may mean), had elapsed, and that time, we have seen, according to the authorities decided in this Court, has not yet arrived.

16. But, apart from this question of limitation, there is nothing, as far as we can see in the order itself, which could create any estoppel of the kind.

17. There are certainly some authorities in this as well as the other High Courts which seem to favour such a view of the section, but I cannot help thinking that this subject has not been sufficiently considered, and that in any question which may arise under the corresponding sections of the present Act (278 to 288) which are somewhat differently worded from Section 246 of the old Act, it may be well to consider what the words “suit to establish the right to the property” really mean.

18. I cannot help thinking that the construction which has sometimes been put upon Section 246 of the old Code may not only have been productive of injustice but may have tended to defeat the intention which the Legislature had in passing the section.

19. I presume the object was to induce persons who have any claim to property which has been attached to come forward at once and dispose of their claims in the execution proceedings, instead of lying by and allowing the property to be sold, and then afterwards to bring suits against the auction-purchaser.

20. Unless a purchaser sees his way to buying property at auction with a fairly good title, he is naturally indisposed to bid anything like its full value, and hence the very general complaint that property at execution sales is too often sold at a frightful sacrifice.

21. But if, when a claim is made in execution, and the claimant fails, he is driven to the inconvenience of having to bring a suit to establish his right, within a year from the time of his failure, instead of having his 12 or some other number of years within which to bring his suit, as he would have had if he had made no claim at all, it would be folly, in the great majority of cases, to make any claims in execution proceedings.

22. Such claims are often very imperfectly tried, and the more so, because they are not subject to appeal. A claimant, therefore, runs great risk in trying them in that way, besides subjecting himself unnecessarily to the inconvenience of the one year’s limitation.

23. In the present case we see our way very clearly, and dismiss the appeal with costs.

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