JUDGMENT
1. Bidhusekhar Banerjee had a wife of the name of Digambari Debi. Five sons were bora to them, viz., Gobardhan (deft, 1), Anath, Ajit, Asit & Anil. Digambari died some-time in 1912 but Bidhusekhar died about nine years thereafter. At the time of Digambari’s death all the five sons were living but at the time of Bidhusekhar’s death Anath was dead but the other four sons survived him. We are stating those facts because one of the points raised in this case is whether the properties in suit belonged to Bidhusekhar or to his wife Digambari. In the view that we are taking it is not necessary to decide this point. Anath died in the year 1917 leaving him surviving a widow, viz., Lilabati. It is admitted that Anath had two sons, Mohitkumar & Monmohan but it is a point in controversy in this case as to whether Mohitkumar predeceased his father or survived him. Ajit is dead; he died after Bidhusekhar. His family consists of at the present time, his widow, Bijan Bashini & three sons Rashamoy Gunamoy & Sukhomoy. Sukhomoy & his mother Bijan Bashini are the pltfs. in suit. The other two sons of Ajit, viz., Rashamoy & Gunamoy have sold whatever interest they had in the properties in suit to another person of the, name of DaSarathi Mukherjee who is deft. 4 in the suit. Asit is now dead & his son Sibanath is deft. 3 in the suit. Anil who is alive is deft. 2 in the suit. In 1921 Gobardhan, Ajit, Asit & Anil mortgaged the four-fifths share in the properties in suit to Joy Chand Lal Babu & his co-sharers. Whether the properties belonged to Bidhusekhar or to his wife Digambari would not affect this share as in any event they would have four-fifths share. The share of the descendants of Anath would not also be affected; that branch would have the remaining fifth share whether the properties belonged to Digambari or to her husband Bidhusekhar. Joy Chand Lal Babu & his co-sharers instituted a suit to enforce his mtge. on 24-5-1927. A preliminary decree for sale was passed in that mtge. suit on 6-8-1927, & the final decree for sale was passed on 9-2-1928. In execution of the final decree for sale, the decree-holders themselves viz., Joy Chand Lal Babu & his co-sharers, purchased the properties mortgaged, which are the properties in suit, on 10-6-1929. That sale was confirmed on 7-1-1931. In the meantime an unsecured creditor of Ajit & Anil had obtained a decree for money against them. That decree was put into execution by that creditor & at the Ct’s. sale held on 9-12-1928, one Bam Brahmo purchased the right, title & interest of Ajit & Anil. The sale at which Ram Brahmo purchased was confirmed on 4-1-1931. From the dates that we have mentioned above relating to the mtge. suit which had been instituted by Joy Chand Lal Babu & his co-sharers it will appear that Bam Brahmo purchased the right, title & interest of Ajit & Anil during the pendency of the mtge. suit. To be more exact, the sale at which Bam Brahmo purchased was held & confirmed between the preliminary & final decrees of the mtge. suit. The share belonging to the branch of Anath was not mortgaged to Joy Chand Lal Babu & his co-sharers. They, however, purchased that, share, which was the remaining one-fifth share in the properties from Monmohan, the son of Anath, who had admittedly survived Anath, by private treaty on 10-8-1932. As a result of the mtge. sale & of this purchase by private treaty, Joy Chand Lal Babu & his co-sharers became the 16 annas owners of the properties in suit. But other complications ensued thereafter. In 1940 two applns. were made against Joy Chand Lal Babu & his co-sharers Under Section 36, Bengal Money-Lenders Act. One appln. was made by the mtgor. Gobardhan, Anil & Sibanath & the other appln. was made by the three sons of Ajit, viz., Gunamoy, Sukhomoy, Rashamay & by Ajit’s widow Biraj Bashini. Those applns. were heard together. They were not, however, disposed of on adjudication, because the mtgees decree-holders-auction-purchasers, Joy Chand Lal Babu & his co-sharers & the mtgors. put in a consent petn. & a consent order was passed. We shall have to notice in some detail one of the terms of the compromise petn. namely, the term which is embodied in para. 1 (ka) of the joint petn. of compromise on the basis of which the consent order was passed on the applns. Under Section 86, Bengal Money Lenders Act. We, would, however, only state whau in substance is the effect of that compromise. Five items of property which had been included in the mtge. had been purchased by the mtgees -decree-holders themselves Joy Chand Lal Babu & his co-sharers in execution of the final decree. The mtgees-auction purchasers gave up items 1 & 2 but they retained the other three items viz., items 3, 4 & 5 & the mtge. decree was taken to be satisfied. Items l & 2 are dealt with in Clause 1 (ka) of the petn. of compromise & these are the two items which are the subject-matter of the suit out of which this appeal arises. By that compromise Joy Chand Lal Babu & his co-sharers also agreed to convey to the mtgors, Gobardhan, Gunamoy, Sukhamoy, Rasamoy, Bijan Bashini, Shib Nath & Anil, the share which they had purchased by a private treaty from Monmohan on 10-8-1932. In pursuance of that agreement Joy Chand Lal Babu & his co-sharers later on executed the promised conveyance The date of compromise is 30-8-1911, & the date of conveyance is 23-12-1941. On 6-7-1942, Bijan Bashini Debi, the widow of Ajit, & Sukhamoy, one of the three sons of Ajit instituted this suit for partition. In the suit the defts. were the persons whom we have named above. Lilabati, the widow of Anath, & Rarn Brahmo were not, however, made parties to the suit. Gobardhan (deft, l) alone appeared in this case & contested the same. We are not concerned in this appeal with all the defences that he took in his written statement. We are concerned with only one defence taken, viz., whether the suit could go on in the absence of Lilabati, the widow of Anath & of Ram Brabmo, that is to say, whether Lilabati & Ram Brahmo are necessary parties in this suit for partition. If they are necessary parties, this suit will have to be dismissed; if they are not, this suit would go on but the only effect would be that the decree in the suit would not be binding on Lilabati or Ram Brahmo, because they are not parties to the suit.
2. The learned Subordinate Judge overruled the defence. He came to the conclusion that Mohitkumar, the eldest son of Anath had predeceased his father. Apparently he accepted the evidence which had been led by the pltfs. that Mohitkumar had died about a year before his father’s death, which admittedly occurred in 1917. A piece of documentary evidence was put in by the deft, to show that Mohitkumar survived his father. The document is a plaint of a rent suit in respect of the property situated in the Dist. of Midnapore. In the cause title the pltfs. were Gobardhan, Ajit, Asit, Anil & Mohit Kumar & Monmohan represented by the next friend mother Lilabati. This suit was filed in 1917 & the cause title proceeds in this way : ‘On the death of Anathnath Banerjee his minor sons Mohit Kumar & Monmohan Banerjee represented by their mother Lilabati Devi.” The learned Subordinate Judge explained away this document by saying that the Gomastha who was in charge of the case must have committed a mistake If we were to proceed on the evidence which has been adduced in this case both oral & documentary it would have been a matter for serious consideration, whether in the absence of any evidence that the Gomoatha who was in charge of that suit had committed a mistake the statement in that plaint could be brushed aside. It would have been also a material question as to whether the properties in suit belonged to Digambari Debi or to Bidhusekhar. If it had belonged to Bibhusekhar the question whether Mohit Kumar died shortly before or after the death of his father Anath would not have been material at all for, in that case succession would not open till Bidhusekhar’s death which occurred in 1921. At that time Anath was dead but the grandsons of Bidhusekhar who were the sons of Anath & who were alive at his death would take a share of his property in their independent right & admittedly at the death of Bidhusekhar Monmohan was the only surviving son of Anath. If however, the property belonged to Digambari, the question whether Anath was survived by one son viz., Monmohan or by both his sons Mohit & Monmohan would have been a very pertinent question as in that case succession would open while Anath was alive. However, we are relieved of deciding on the evidence the point which we have just indicated for the purpose of considering whether Lilabati was a necessary party to this suit for partition, as we are of opinion that the question is concluded by res judicata as between the defts. in this suit including Gobardhan & the pltfs. The question of res judicata arises in the following manner : In the year 1989 when Monmohan was a minor ; his mother Lilabati as his next friend instituted a suit for partition which included the properties in suit now against Gobardhan, Ajit, Asit & Anil Banerjee, the other four sons of Bidhusekhar. The plaint of the suit has been marked Ex. 11 in this case. In para. l of the plaint, the pltf. of that suit stated that Bidhusekhar the paternal grand-fat her of the pltf., died leaving four sons viz., the four defts. to the suit & another son Anath, the father of the pltf., that Anath died on the 15th of Sravan 1324 B. S.–31-7-1917, during the life time of his father leaving the pltf. as his heir. The learned Judge simply notices in his judgment this plaint & uses his para. of the plaint in support of his finding that Mohit, the other son of Anath had predeceased the latter. The learned Judge, however, did not notice the fact that the suit so instituted terminated in a decree. The decree is an ex parte decree & is Ex. 9 in the case. On the basis of the said statement, the pltf. Monmohan claimed the share of his father, viz., one-fifth. If Mohit had survived Anath then Monmohan could only claim one-tenth share in the property, viz., a moiety share of what would have belonged to his father, Anath & the other moiety share would have devolved upon Mohit & Lilabati would have got his share on the death of Mohit as heir of her son. That being the position, we hold that the question as to whether Anath died leaving him surviving only one son Monmohan or two sons Monmohan & Mohitkumar was a direct & substantial question in issue in the case & must be taken to have been decided in favour of the pltf. in that suit viz., Monmohan. On this ground & this ground alone we hold that the defence of Gobardhan that Lilabati is a necessary party to the suit that we have before us cannot be given effect to.
3. We will now deal with the question as to whether Ram Brahmo is a necessary party to the suit out of which this appeal arises. We have already pointed out that he purchased the right, title & interest of Ajit & Anil during the pendency of the mtge. suit instituted by Joy Chand Lal Babu & his co-sharers. Anil & Ajit were two of the mtgors. & they were parties to the suit. If the proceeding under the Bengal Money-Lenders Act had not resulted in the compromise or if as a result of that compromise the mtgee- decree- holders purchasers had conveyed to the defbs. in that suit what they had purchased at the court-sale held in execution of their mtge. decree, Earn Brahmo would have been concluded by the rule of lis pendens. If, however, the mtge. sale in respect of the properties in suit which were items (1) & (2) in the sale certificate given to the mtgee-decree-holders purchasers, Joy Chand Lal Babu & his co-sharers, was set aside as a result of that compromise & the mtge. decree was fully satisfied, the doctrine of lis pendens would not in our opinion apply. The doctrine of lis pendens although it is contained in Section 62, T. P. Act, a statute which deals with “voluntary transfers” would apply to execution sales also. This has been settled by three decisions of the Judicial Committee viz., Nilakant Banerji v. Suresh Chandra Mullick, 12 I. A. 171 : (12 Cal. 414 P.C.) Radha Madhub Haldar v. Monohar Mukerji, 15 I. A. 97 : (15 Cal. 756 P.C.) and Moti Lal v. Karrab-ulDin, 24 I. A. 170 : (25 Cal. 179 P. C.). Though Earn Brahmo is not a purchaser by private treaty but is a purchaser at a Ct. sale, the validity of this purchase must therefore in effect be judged by the terms of Section 52, T. P. Act which embodies the general law of lis pendens. The material portion of the Section runs thus:
“… the property cannot, therefore, be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein.”
That is to say, a transfer pendente lite is not absolutely prohibited, i.e., a transfer pendente lite is not void or illegal, only the title acquired by such a transfer would be inferior to the title acquired under the decree or order which is eventually passed in the suit during the pendency of which the transfer is made by a party–to that suit. Applying the language of this part of the section which we have quoted above to the facts of this case, Ram Brahmo’s title would have been swept away by the title which the auction purchasers had got by the sale in execution of the-mtge. decree passed in the suit instituted by Joy Chand Lal Babu & his co-sharers to enforce the mtge. executed amongst others by Ajit & Anil–persons whose right, title & interest Ram Brahmo had purchased at a court sale during the pendency of that suit. That is to say, the title of Joy Chand Lal Babu & his co-sharers qua purchasers at the-mtge. sale would have prevailed over the title-acquired by Ram Brahmo. Ram Brahmo could; not have set up his title against Joy Chand Lal Babu & his co-sharera qua auction purchasers or any person claiming title through Joy Chand Lal Babu & his co-sharers by purchase, inheritance etc. That being the position in law it is necessary to see whether the other parties to the compromise, namely, Gobardhan, the heirs of Ajit, namely, Gunamoy, Sukhomoy & Rasamoy & Bijan Bashini; Sibnath, the heir of Asitnath & Anil can be regarded as assignees of Joy Chand Lal Babut & his co-sharers, qua auction purchasers. This question would depend mainly upon Clause 1 (ka) of the terms of compromise arrived at between the last mentioned persons & Joy Chand Lal Babu & his co-sharers in the Money-lenders Act proceedings. Clause 1 (ka) runs as follows :
“Out of the mortgaged properties property of item 1 is the ancestral residential house of the petnrs. & the property of item 2 is the patit homestead laud adjoining the property of item 1. The mtge, decree obtained by the opposite parties in respect of items 1 & 2 of the mortgaged properties & the interest they had acquired on the basis of the execution of the mtge decree are cancelled & set aside, & the sixteen annas interest acquired by the opposite parties, in the said items 1 & 2 of properties by virtue of purchase at auction & under deed of voluntary sale comes to be extinct & the same vests in the petnrs. in the present case & also in Misc. Case No. 48 of 1941 of this Ct. & the sixteen annas interest in items 1 & 2 of the mortgaged properties comes to revive in favour of the petnrs. in the aforesaid two suits & they become owners & possessors of the aforesaid items 1 & 2 of properties. The opposite parties will not be entitled to lay any further claim or demand in respect of the same in future.”
The first part of Clause l (kha) states that the title acquired by the mtgee. auction purchasers, Joy-chand Lall Babu & his co-sharera in items 3, 4 & 5 (properties which are not in suit) shall remain in force & intact. That clause then winds up with the following words:
“The entire claim of the opposite parties under the decree in Mtge. Suit No. 29 of 1927–together with costs is deemed to be satisfied out of the properties in the aforesaid items 3, 4 & 5.”
Reading these clauses together, the effect is that the title acquired by the mtgees. by their purchase at the auction sale in items 1 & 2 was extinguished. Those items of property are taken out of the mtge. security & the court, sale in respect thereto was set aside, with the result that the mtgors. retained the title which they originally had & the mtge. decree was fully satisfied by the mtgees. retaining as owners the other three items included in the mtge., namely, items 3, 4 & 5. In this view of the matter, Gobardhan & the other persons we have mentioned above cannot, in our opinion, be considered as assignees of the mtgee. decree-holders purchasers. The doctrine of lis pendens cannot therefore be invoked by the pltfs. in the partition suit, which we have before us, for the purposes of defeating the title which Ram-brahmo had acquired by reason of his purchase at the court-sale held in execution of a money decree that had been passed against Ajit & Anil. The first ground on which the learned Subordinate Judge based his decision cannot, therefore, be supported.
4. The second ground on which he overruled the plea taken by deft 1 to the effect that Ram Brahmo was a necessary party to the suit has now to be considered.
5. The relevant facts bearing on this point are as follows : The mtgees., Joychand Lall Babu & his co-sharers, purchased the mortgaged properties, which are the subject-matter of this suit, on 10-6-1929 & that sale was confirmed on 7-1-1931. Thereafter they as auction purchasers went to take delivery of possession of the properties. They were obstructed by Lilabati & Rambrahmo. As we have already held on a different ground that Lilabati is not a necessary party to the suit that we have before us it is not necessary in considering this point to make a further reference to Lilabati. On Rambrahmo obstructing the delivery of possession the auction purchasers, Joy Chand Lall Babu & his cosharers, started a proceeding against him under the provisions of Order 21, Rule 97, C. P. C. Those proceedings were numbered as Misc. Case No. 34 of 1937 of the Ct. of the Subordinate Judge of Burdwan. The learned Subordinate Judge disposed of the Misc. case by his order dated 30-8-1937. It is not necessary for our purposes to examine the reasons which he gave in support of that order. The order was an order in favour of the auction purchasers made under the provisions of Order 21, Rule 98 of the Code, that is to say, the effect of the order was that the auction purchasers Joy Chand Lal Babu & others were directed to be put in possession of the properties purchased by them. Rambrabmo, however, did not institute a suit under the provisions of Order 21, Rule 103 of the Code. Limitation governing a suit coming under Order 21, Rule 103 is prescribed in Article 11-A, Limitation Act. The period of limitation is one year & time starts from the date of the order, which in the case before us was an order under Order 21, Rule 98 of the Code. The learned Subordinate Judge has held that as Rambrahmo did not institute a suit within the period provided for in Article 11-A, Limitation Act, his right to the property which he had purchased at the court-sale in execution of a money decree against Ajit & Anil was extinguished as soon as the period of one year from the date of the order expired. The learned Judge, however, in coming to this conclusion referred only to the provisions of Order 21, Rule 103 & did not consider Section 28, Limitation Act. The terms of Order 21, Rule 103 by themselves would not lead to the conclusion that the title of the person affected by the order passed under Order 21, Rule 98 or under Order 21, Rule 99 is extinguished, if he does not bring his suit within one year as provided for in the aforesaid Article 11-A, Limitation Act. For the purpose Section 28, Limitation Act, in our opinion, is the section which has to be considered. The title to the property of the rightful owner would be extinguished only if Section 28, Limitation Act, can be invoked.
6. Section 28, Limitation Act, is in these terms:
“At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.”
The section speaks of a suit for possession which means, in our judgment, a suit for recovery of possession. For the purpose of attracting the operation of Section 28 it is necessary that the proceeding, must be (1) a suit & (2) a suit for possession. It has been held in a number of cases that, where under some law the procedure for recovery of possession by a party is not through a suit but through an appln. if the period limited for making the appln. for possession is barred, Section 28, Limitation Act, would not come into the picture. In such a case the remedy would be barred but the right would not be extinguished, with the result that if a person who had not made an appln. for possession within the time limited by the proper Article of the Limitation Act, somehow or other gets possession & is thereafter dispossessed by a third person, his suit against the third person would not be defeated on the ground that he had no title at the date of the institution of that suit for possession. If, however, his title had been extinguished Under Section 28, Limitation Act, the position would have been different, for, even if he had regained possession somehow or other, his suit would have been defeated by the deft, on the plea that though he, the deft., may have been a trespasser, the pltf. could not recover as he himself had no title. We have made these observations for the purpose of indicating how strictly Section 28, Limitation Act has been construed. We may say that the strict construction put upon Section 28, Limitation Act is in accordance with the cardinal rule of interpretation of Statutes, namely, that a Statute which takes away a right from a person or which imposes a burden upon him has to be strictly construed. The fundamental question that has to be considered in dealing with the second ground on which the learned Subordinate Judge has proceeded is whether a suit as contemplated by Order 21, Rule 103 of the Code can be regarded to be a suit for possession. A civil proceeding instituted under the provisions of that rule is a suit, for that word is used in the rule itself, but the question is–is the suit contemplated in that rule a suit for possession ? So far as we are aware, there are no decided cases on the point, & therefore the question has to be considered by considering the provisions not only of that rule but also of Rules. 97, 98 & 99 of Order 21, as also of other rules in that Order, which so far as the point in the present case is concerned is pari materia with the provisions of Order 21, Rule 103. Order 21, Rules 58 & 63 would, therefore, have to be considered also.
7. Order 21, Rule 58 deals with objections to the attachment of property. The objections can be decided one way or the other, that is to say, either in favour of the decree-holder who has attached the property or in favour of the person objecting to the attachment, either on investigation on the merits or without any investigation, for. the proviso allows the executing Ct. to reject the objections summarily in some cases. Order 21, Rule 63 states that where a claim or objection is preferred the party against whom the order is made may institute a suit to establish his right to the property in suit but subject to the result of Buch suit, if any, the order shall be conclusive. The language of Order 21, Rule 103 is that any party not being a judgment-debtor against whom an order is made under Rule 98, 99 or 101 may institute a suit to establish the right he claims to the present possession of the property but subject to the result of such suit, if any, the order shall be conclusive. The concluding sentence of Order 21, Rule 63 & of Order 21, Rule 103 is the same (“but subject to the result of such suit, if any, the order shall be conclusive”.) There are, however, other material differences between the two rules. Inasmuch as no specific rule is mentioned in Order 21, Rule 63 it has been held that Article 11-A, Limitation Act, would apply even where an objection to the attachment is rejected without investigation on the merits. It is not however possible to take the same view in respect of Rule 103, for, it specifically mentions that the suit is to be brought in terms of the section by a person against whom an order is made under Rule 98, 99 or 101. In order that the shorter period of limitation as provided for in Article 11-A, Limitation Act may apply, there must be investigation on the merits, for an order under B. 98, 99 or 101 can only be passed after investigation on the merits There is another distinction in the wording of the two sections & the reason is obvious. Whereas Order 21, Rule 63, speaks of a suit to establish the right which he claims to the present possession of the property. These words “claims to the present possession of the property” & the con-eluding sentence, namely, “but subject to the result of such suit etc.,” in our opinion furnish a clue to the nature of the suit contemplated by Rule 103. In Kumakri v. Ghansham Misra, 35 I. A. 22 : (35 Cal. 202 P. C.) in considering the question as to whether the suit that had been instituted had to be stamped with ad valorem court-fees or a fixed court-fee under Article 17 (l), Limitation Act, their Lordships of the Judicial Committee made certain observations which throw some light on the point. In that case an objection to an attachment had been made. The objection was overruled. The claimant thereafter instituted a suit for a declaration of his title to the property attached & prayed for an injunction to restrain the decree-holder from proceeding on with the. execution. He valued the two prayers, namely, for declaration & injunction, separately & paid two stamps of Rs. 10/- as court-fees. The deft. to that suit raised the question as to the sufficiency of the court-fees & contended that ad valorem court-fees which would have amounted to a sum of about Rs. 1250/- were payable. The H. C. gave effect to the contention of the deft. but the Judicial Committee of the P. C. held that the pltf. had over-paid court-fees by the sum of Rs. 10/-. He was required under the law to pay court-fees of Bs. 10 only under Article 17 (l), Limitation Act. So far as the subject-matter of the decision is concerned, it is entirely different but in arriving at that conclusion their Lordships of the P. C. said that a suit under Order 21, Rule 63 or the corresponding provision of the C. P. C. of 1882, was in substance a review of the summary order passed under Order 21, Rule 58. We are referring to the rules of the Code of 1908, for, the corresponding sections of the C. P. C., 1882, which were in force at the time of the P. C. decision are exactly the same. Apparently, the P. C. made those observations on the strength of the words “subject to the result of such suit, the order passed, shall be conclusive.” The phraseology of the last sentence of Rule 103 is exactly the same as the phraseology of the last sentence of Order 21, Rule 63. These observations of the P. C. would support the conclusion that a suit, whether it be a suit under Order 21, Rule 63 or a suit under Order 21, Rule 103, would in essence be a suit to set aside an order of the Ct. passed under Order 21, Rule 58 or Rule 98 or 99 as the case may be, in execution proceedings.
8. Further, an analysis of the provisions of Order 21, Rule 103 & of Order 21, Rules 98 and 99 would, in our opinion, lead to the conclusion that a suit contemplated by Order 21, Rule 103 is not by its nature a suit for possession of the property in respect of which the order had been made by the executing Ct. under Order 21, Rule 98 or Rule 99 as the case may be. We will first take the case of an order passed under Order 21, Rule 99. This order (as well as an order which is contemplated by Rule 98, are to be in proceedings started under Order 21, Rule 97, that is to say, (l) proceedings started by the decree-holder who has obtained a decree for possession & who is obstructed when he goes to take delivery of possession of the property, or (2) by an auction-purchaser of a property at a court-sale in execution of a money, decree or a decree which is to be realised by recourse to sale of property. Those proceedings started by the decree-holder has to proceed in the presence of the party who has so obstructed. In substance the order under Rule 99 would be an order of dismissal of the appln. made by the decree-holder under Order 21, Rule 97, that is to say, the effect of the order is that he cannot take possession through the writ for possession which had been issued by the executing Ct. at his instance. The suit which is contemplated by Rule 103 is a suit in which he has to pray that he has the right to present possession, that is to say, that he had the right to take possession at the relevant time, namely, when the writ for possession was issued at his instance by the executing Ct. On the language of Rule 103 he has not to make any other prayer. If he fails in the suit, the matter ends here. The writ which was issued at his instance remains a dead writ. If he succeeds, that is to say, he establishes his claim to the present possession of the property as against the deft, who had resisted the execution of the writ for possession, he would take possession of the property by the execution of that very writ on the basis of which possession could not be delivered before by the executing Ct. by reason of the obstruction at that time by the deft. So to say, during the interval between the order passed under Order 21, Rule 99 & the decree which is passed in favour of the decree-holder or the auction-purchaser, as the case may be, in the suit under Order 21, Rule 103 the writ was in a state of suspended animation. The result of the suit one way or the other would give it full life, if we may use a figurative expression or put an end to its life.
9. We will now examine the case where the decree holder or the auction purchaser, as the case may be, gets an order in his favour, that is to say, an order under Order 21, Rule 98. The execution of the writ for possession is obstructed & the Ct. by its order under that rule says that the obstruction by the person concerned was unlawful & the Ct. is empowered to put the person so obstructing even to prison if after the order passed under that rule he persists in obstructing the decree-holder or the auction purchaser, as the case may be. There would be some appreciable interval of time between the date of the order passed under Order 21, Rule 98 & the date when the successful decree-holder or the auction-purchaser as the case may be, actually takes possession of the property & it is possible to contemplate a case that within that interval the person who had obstructed the decree-holder or the auction-purchaser, as the case may be & against whom the order was made under Order 21, Rule 98 may institute a suit under Order 21, Rule 103. In such a case, obviously he would not have to make a prayer for recovery of possession. It would still be a suit under Order 21, Rule 103 without a prayer for possession. It would in our opinion make no difference whatsoever so far as the character of the suit contemplated under Rule 103 is concerned even if the suit is instituted after the successful decree-holder or the auction-purchaser, as the case may be, had actually taken possession of the property after the order had been passed under Rule 98. If the pltf. in that suit succeeds, that is to say, establishes his claim to the present possession of the property the order on the strength of which the decree holder or the auction-purchaser had taken possession disappears & it would be the duty of the executing Ct. which had passed the order under Rule 98 to restore status quo ante & put the other party in possession. Such being the position, it is not in our opinion at all necessary for the pltf. instituting a suit under the provisions of Rule 103 to make any prayer for recovery of possession. We are accordingly of opinion that a suit contemplated under Rule 103 is not a suit for recovery of possession within the meaning of Section 28, Limitation Act. We cannot, therefore, agree with the second reason given by the learned Subordinate Judge in support of his judgment.
10. The third & the last reason which the learned Subordinate Judge gives is this : He finds that Rambrahmo was not in possession at any time after his purchase & the judgment debtors mentioned in the decree in execution of which he purchased, namely, Ajit & Anil were in possession all along, that is to say, from before the purchase of Rambrahmo & thereafter up to the date of this partition suit. He says that in these circumstances Rambrahmo’s title has been extinguished by adverse possession. Apparently, the learned Subordinate Judge has overlooked two things His finding is that the judgment-debtors, Ajit & Anil were in possession at the time when Rambrahmo made the purchase in execution of the decree at the court-sale. On this finding, the proper Article of the Limitation Act would be Article 138. He overlooked that Article. According to that Article limitation against Rambrahmo would run from the date when the court sale at which he had purchased became absolute, because at the date of his sale the judgment-debtors under the decree in execution of which he had purchased were in possession. The sale certificate of Eambrahmo has been put in & that shows that the sale was confirmed on 1-1-1931. This date the learned Sub-ordinate Judge has overlooked. Under Article 138, limitation against Rambrahmo would run from that date & if he did not institute a suit within 12 years of that date his title would have been extinguished by reason of the provisions of Section 28, Limitation Act, but this suit for partition was instituted on 6-7-1942, that is to say, within 12 years of the date when Rambrahmo’s sale was confirmed. Whether Rambrahmo’s title had been extinguished or not by reason of Section 28, Limitation Act, has to be determined in reference to the date when the suit was instituted. In fact, when these facts were pointed out to the learned Advocate for the resps. he did not make any attempt to support this part of the judgment of the learned Subordinate Judge.
11. The result is that we disagree with all the reasons given by the learned Subordinate Judge in support of his conclusion that Rambrahmo is not a necessary party. We allow the appeal on the ground that Rambrahmo only was a necessary party to the suit. Deft. 1 would get the costs of this appeal as also the costs of the lower Ct. as mentioned in the Schedule to the decree from the pltf. the hearing-fee & the fee for drawing up the grounds of appeal in this Ct. being assessed at a consolidated sum of Rs. 340/-. As the appeal has been allowed, no order is necessary in the Rule.