Authored By : William Comer Petheram, Mitter, Henry ThobyPrincep, Arthur Wilson, Loftus Richard Tottenham

William Comer Petheram, C.J., Mitter, Henry Thoby Princep,Arthur Wilson and Loftus Richard Tottenham, JJ.

1. The question referred to the Full Bench is stated inthese words: "Is this suit barred by limitation" And the reason forthe reference is that the learned Judges doubt the correctness of the case ofKrishna hall Dutt v. Radha Krishna Surkhel I.L.R. Cal. 402, followed by theLower Appellate Court in the present case.

2. The suit was brought to recover possession of a 4 annasshare of Mouzah Mukannagur, upon the allegation that the defendant No. 2 haddispossessed the plaintiff on the 31st of Assar 1292 (which was some day inJuly 1885); and the suit was instituted on the 7th of August following. Theplaintiffs case was that he had purchased the property at auction in executionof his own decree against one Gopal Das Banerjee on the 3rd of March 1875; thathe had obtained possession through the Court, and had enjoyed possession by thereceipt of rent until disturbed and ultimately ousted by the defendant No. 2.

3. Gopal Das Banerjee had, it was alleged, acquired theproperty by purchase at auction in execution of a decree against JogodanundGossami on the 8th of January 1873, and had obtained possession through theCourt on the 10th of August of that year.

4. Among the pleas raised by the defendants was that oflimitation; for it was contended that the plaintiff, who had purchased theproperty in 1875, had never enjoyed any possession of it; and that hispredecessor in title, Gopal Das Banerjee, had likewise failed to obtain anyreal possession. The defendants are two in number, the first being the son ofthe Jogodanund Gossami, whose interest in the property was sold in execution ofa decree in 1S68; and the second being a person claiming possession as izaradarunder him.

5. On the point of limitation the defendants case is thatthe possession of Gossami was never disturbed by the execution proceedingseither against Jogodanund, or against Gopal Das Banerjee. The Courts below havenegatived the plaintiffs allegation that he ever had substantial possession ofthe property.

6. The question, therefore, whether the present suit isbarred by limitation or not depends upon the legal effect to be given to thesymbolical possession, as it is called, obtained on the 10th of August 1873 byGopal Das Banerjee as against the father of defendant No. 1. For this suit wasinstituted within 12 years of that date.

7. The symbolical possession, obtained by the plaintiff in1875, would not. affect the defendants who were not parties to the executionproceedings against Gopal Das Banerjee.

8. We are of opinion that the rule laid down in the FullBench case of Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. Cal. 584, is.applicable to this case, and that its application saves the suit from the barof limitation. That was a suit in which the assignee of a decree for possessionof certain Immovable property had been put in formal possession by process ofexecution under Section 224* of Act VIII of 1859, and had then sold hisinterest to the plaintiffs, who had since been unable to obtain possession, andsued to recover it from the original defendant. The Full Bench held that thesymbolical possession obtained by the plaintiffs vendor was effective asagainst the judgment-debtor, defendant, and that the suit brought against himwithin 12 years of that event was not barred by limitation.

9. In the present case the Court of First Instance held,-and we think rightly held-that the principle there laid down as to symbolicalpossession obtained by the decree-holder under his decree, is equallyapplicable to the case of a purchaser at auction in execution of a decree. Itis the only mode in which the Court can give the purchaser possession, and asagainst the judgment-debtor it is effective for all purposes.

10. The case noticed by the Division Bench which referredthis question to the Full Bench, Krishna Lall Dutt v. Radha Krishna SurkhelI.L.R. Cal. 402, was decided without reference to the earlier Full Bench casewhich was apparently not brought to the notice of the Judges.

11. By applying the principle laid down by the Full Bench inJuggobundhu Mukerjee v. Ram Chunder Bysack I.L.R.Cal. 584, we find that thejudgment-debtor was actually in possession on the 10th August 1873, and wasentitled to be in possession again from that or any subsequent date when he wasdispossessed by the previous owner.

12. The present suit having been instituted within 12 yearsof the 10th of August 1873, our answer to this reference must be that the suitis not barred by limitation.

13. The result is that the decree of the Lower AppellateCourt must be set aside and the case must go back to be determined on the merits.

How it is to be delivered when in the occupancy of ryot.

*[Section 224: If the decree be for land or other Immovableproperty in the occupancy of ryots or other persons entitled to occupy thesame, the Court shall order delivery thereof to be made by affixing a copy ofthe warrant in some conspicuous place on the land or other Immovable property,and proclaiming to the occupants of the property by beat of drum, or in suchother mode as may be customary-at some convenient place or places, the substanceof the decree in regard to the property.]

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Joggobundhu Mitter vs. Purnanund Gossami and Ors.(21.03.1889 - CALHC)