JUDGMENT
1. In support of this appeal learned Counsel submitted that as regards the lands comprised in Schedule 1 (a) the lower appellate court was wrong in holding that the suit was barred under the provisions of Order 21, Rule 63, of the Code of Civil Procedure, read with Article 11 of the Limitation Act. The submission of learned Counsel was that no final decision was given on the merit of the application under Order 21, Rule 58, Code of Civil Procedure, but the application was rejected under the proviso to Order 21, Rule 58, which states that
“no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed”.
In support of this submission learned Counsel referred to the language of the orders made in the two applicants, namely, Exhibits 6A and 6B. The contention put forward by learned Counsel on behalf of the appellant was that in a case which comes within the proviso to Order 21, Rule 58, Code of
Civil Procedure, the limitation prescribed by Rule 63, read with Article 11 of the Limitation Act does not apply, and the finding of the lower courts on this point is erroneous. We are unable to accept that the argument of learned Counsel for the appellant is right.
In the leading Madras case, Venkatarathnam v. Ranganayakamma, AIR 1919 Mad 738, it was held by a Full Bench of the Madras High Court that where an executing court purports to make an order under the proviso to Order 21, Rule 58, Code of Civil Procedure, namely, an order refusing to investigate, such an order came within the mischief of Order 21, Rule 63, Code of Civil Procedure, read with Article 11 of the Limitation Act.
The decision of the Full Bench of the Madras High Court in this case has been received with approval by other High Courts in India, for instance, in Mt. Aziz Jahan Begum v. Sardar Singh, (S) AIR 1955 All 241, it was held by a Full Bench of the Allahabad High Court that an order summarily rejecting an objection under Order 21, Rule 58, Code of Civil Procedure, on the ground that it had been designedly or unnecessarily delayed was an order contemplated under Order 21, Rule 63, Code of Civil Procedure.
There is a decision to a similar effect in Trimbat Tumdu Shet v. Ziparu Chaturdas, ILR 57 Bom 213: (AIR 1933 Bom 190), in which it was held by Sir John Beaumont and Murphy, J., that where an objection to execution proceedings is dismissed under the proviso to Order 21, Rule 58, Code of Civil Procedure, as being made after unnecessary delay, the order rejecting the claim is an order made against the claimant within the meaning of Order 21, Rule 63, and the time within which a suit could be brought to establish the applicant’s claim was limited to one year by Article 11 of the Limitation Act.
A similar view has been expressed by the Calcutta High Court in Abdul Latif v. Aklu Mian, AIR 1935 Cal 500 and Ambica Prasad Sanyal v. Soorajmull Nagarmull Firm, AIR 1939 Cal 620. There is also a decision of a subsequent Full Bench of the Madras High Court in Cannanore Bank Ltd. v. P. Aryanveettil Madhavi, AIR 1942 Mad 41, which expressly affirms the ratio decidendi of the previous Full Bench case in AIR 1919 Mad 738.
So far as the Patna High Court is concerned, the point was dealt with by Fazl Ali J., in Rasananda Rath v. Ratha Sahu, AIR 1935 Pat 122, which was also a case where a claim preferred under Order 21, Rule 58, Code of Civil Procedure, was refected on the ground that it was designedly and unnecessarily delayed. It was held in these circumstances by Fazl Ali J., that the order was one made against the claimant within the meaning of Order 21, Rule 63, and the order would be conclusive unless the party against whom the order was made instituted a suit to establish his right to the property within the period of limitation, and it was not open to him to apply under Order 21, Rule 100.
In our opinion, the decision of the Full Bench of the Madras High Court in AIR 1919 Mad 738 and of the Allahabad High Court in (S) AIR 195S All 241, and also of the learned Single Judge of the Patna High Court in AIR 1935 Pat 122, lays down the correct law on the point. As pointed out by the Privy Council in Sardhari Lal v. Ambika Pershad, 15 Ind App 123 (PC), the object of the Act is to secure a speedy settlement of questions of title raised at execution proceedings.
Section 283 of the Codes of Civil Procedure of 1877 and 1882 only gave a right of suit to the
party against whom an order had been passed under Sections 280, 281 or 282, and did not provide for the case where the Court under Section 278 refused to investigate the claim on the ground that it had been designedly or unnecessarily delayed. In such cases Section 283 failed to provide any machinery for the speedy settlement of the questions of title raised by the claim.
Under the Code of Civil Procedure of 1908 the legislature apparently intended to supply this omission by enacting order 21 Rule 63 and conferring the right of suit in general terms “where a claim or an objection is preferred” upon the party against whom an order is made, instead of limiting it, as in Section 283, to cases in which an order had been passed under Rules 60, 61 and 62, corresponding to Sections 280, 281 and 282 of the old Code.
In our opinion, where a claim or objection is preferred under Rule 58, and the Court rejects it under the proviso to that rule on the ground that it was designedly or unnecessarily delayed, the unsuccessful claimant or objector clearly conies within the words “the party against whom the order is made”. We accordingly take the view that the question of limitation was rightly decided against the appellant in the present case by the lower Courts, and the argument addressed in this behalf by learned Counsel for the appellant must be rejected.
2. Two other points were taken by learned Counsel on behalf of the appellant. It was contended that the application under Order 21, Rule 58, was made not on behalf of the party, defendant No. 9, but on behalf of defendants Nos. 6 to 8. It was also argued that the lower appellate court was wrong in holding that Harihar Prasad Singh, defendant No. 10, was a cosharer tenant and that he ought to have been impleaded in the rent suit, and in his absence the decree in effect will be a money decree and not a rent decree.
We do not think that there is any merit in these objections raised on behalf of the appellant, because they are essentially questions of fact upon which the findings of the lower courts are binding in second appeal upon the High Court. In our opinion, there is no substance in these arguments advanced on behalf of the appellant.
3. With regard to Schedule 2 properties, the argument advanced on behalf of the appellant is that there is no finding by the lower courts that plaintiff No. 2 or his predecessor-in-title was in possession within twelve years prior to the institution of the suit. We do not think that this argument is correct because there is a finding of both the lower courts that plaintiff No. 2 was in possession of the properties described in Schedule 2 of the plaint.
This finding of fact is partly based upon the decree of the Partition Suit No. 190 of 1943 regarding Schedule II properties in which defendant No. 9 was also a party. In our opinion, the question raised by the appellant is also a question of fact and the finding recorded by the lower appellate court is supported by proper evidence and it is, therefore, not open to challenge it in second appeal.
4. For these reasons we hold that there is no
merit in this appeal which is accordingly dismissed
with costs.