P.B.GAJENDRAGADKAR, C.J.I.

(1) THE short question of law which arises in this appeal is whether a suit filed in pursuance of O. 21 r. 63 of the Code of Civil Procedure attracts the, provisions of s.80 of the Code. This point arises in this way. One Phool Chand, the predecessor-in-title of the appellant Sawai Singhai Nirmal Chand, instituted a suit against the respondent, the Union of India, in the court of the Second Additional District Judge, Jabalpur, and obtained a decree on 25/4/1951 for Rs. 24,234-14-0 and proportionate costs with interest @ 4% per annum. The respondent challenged the said decree by preferring an appeal in the High court. Pending the appeal, the respondent deposited the decretal amount of Rs. 31.849-9-9. On 14/12/1952, phool Chand withdrew Rs. 28.032-12-0 out of the said amount after furnishing due security in that behalf. Ultimately, the respondents appeal was partly allowed on 26/06/1954, and the decretal amount was reduced to Rs. 10,971-15-6. In the result, the total decretal amount due to the decree holder Phool Chand came to Rs. 12,691-13-6; and that meant that he had withdrawn Rs. 15,340-14-8 in excess of his legitimate dues.

(2) ON 4/09/1954, the respondent applied for restitution of the said amount and claimed interest thereon. The Second Additional District Judge, Jabalpur, allowed the said application, and in execution of it, the respondent sought for the recovery of the said amount by attachment and sale of certain immovable properties of Phool Chand, mentioned in the application. These properties were accordingly ordered to be attached. But, meanwhile, they had been sold by Phool Chand to the appellant by a registered sale deed executed on 9/01/1953. That is why the appellant objected to the said attachment under O.21 r. 58 of the Code. but his objection was over-ruled and his application was dismissed by the Second Additional District Judge on 16/04/1957. It is this order which has led to the present suit under 0. 21 r. 63 of the code.

(3) BEFORE the appellant filed the present suit on 23/06/1958 in the court of the First Additional District Judge, Jabalpur, he gave notice to the respondent under s. 80 of the Code on 12/04/1958. In the said suit, he claimed a declaration that the properties in question could not be attached and sold inasmuch as the title in respect of the said properties vested in him by virtue of a valid sale deed executed in his favour by Phool Chand. The appellant also claimed an injunction restraining the respondent from attaching and selling the said properties.

(4) IN defence, the respondent raised a plea of limitation. It is common ground that the period of limitation prescribed for a suit under O. 21 r. 63 by Article 11 of the Limitation Act is one year from the date of the order under O. 21. r. 58. The respondent urged that s. 80 of the Code did not apply to the present suit; and so, the period covered by the notice served by the appellant on the respondent could not be excluded for the purpose of calculating limitation in the present case. It is not disputed that if s. 80 applies to the present suit and the period covered by the notice can be taken into account, the suit is within time. It is also not disputed that if s. 80 does not apply to the present suit and the period of the notice cannot be taken into account, the suit is barred by time; and so, at the preliminary stage, the only question which fell to be determined on the pleadings of the parties was whether s. 80 applies to the present suit. Both the learned trial Judge and the High court of Madhya Pradesh, Jabalpur, have answered this question against the appellant, and the suit has, therefore, been dismissed as barred by time. It is against this decision that the appellant has come to this court with a certificate granted by the said High court. Mat is how the only point which calls for our decision in the present appeal is whether s. 80 of the Code applies to a suit instituted