ORDER

1. The short question involved in this appeal is as to whether a suit could be filed under Order 21 Rule 63 of the Code of Civil Procedure two years after the date on which objections filed under Order 21 Rule 58 CPC against attachment of the suit property came to be dismissed for default. The skeleton facts centering round this controversy are to the effect that the appellant claimed to be the auction-purchaser who had purchased the suit shop in an auction dated 14-1-1964 for Rs 14,500. The said auction was held in execution of two money decrees obtained by one Bankey Lal against the judgment-debtor one Jagdish Saran. Two execution cases i.e. Cases Nos. 46 and 47 of 1958 were initiated by Bankey Lal, the decree-holder and he put the property to sale. The appellant herein emerged as the successful auction-purchaser for one shop as stated above. Auction in his favour was confirmed on 29-7-1966 and the sale certificate for him was prepaeed on &8-I966. Symbolic possession was also given to him on 9-8-1966. Defe alleged to have obtained a compromise decree in Suit No. 11 of 1959 against the original judgment-debtor, Jagdish Prasad in execution of that decree they got the very same suit property attached in Execution Case No. 24 of 1965. This property was purchased by Defendants 1 and 2 on 11-3-1967 for a consideration of Rs 3000. Auction-sale in their favour was confirmed on 2-6-1969. The plaintiff-appellant herein sought to get the attachment of the said shop in Execution Case No. 24 of 1965 removed and for that purpose moved the executing court under Order 21 Rule 58 CPC. That application got dismissed for default on 8-10-1966. It is thereafter that the plaintiff-appellant filed a suit under Order 21 Rule 63 as it then stood on the statute-book. The suit was filed by him on 7-10-1968. It is obvious that the said suit was barred by limitation as provided by Item 98 of the Schedule to the Limitation Act which reads as under : -- Description of suit Period of Time from which limitation period begins to run -- 98. By a person against whom an One year The date of the order referred to in Rule 63 orin final order. Rule 103 of Order XXI of the Code of Civil Procedure, 1908(5 of

1908), or an order under Section 28 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), has been made, to establish the right which he claims to the property comprised in the order.

2. It is obvious, therefore, that when a person against whom an order referred to in Order 21 Rule 63 of the Code of Civil Procedure, 1908 is passed, seeks to file a suit challenging the said order, the limitation period is one year from the date of the final order. The final order under Order 21 Rule 58 against the appellant was passed though on default of his appearance on 8-10-1 966. Consequently, by operation of Order 21 Rule 63 CPC as then applicable and Item 98 of the Schedule to the Limitation Act, one-year period was available to the appellant to challenge the said order but he missed the bus and filed the suit on 7-10-1968 which was clearly time-barred. Such a time-barred suit ought to be dismissed by the Court as laid down by Section 3 of the Limitation Act and Section 5 obviously could not apply to suits. Therefore, the plaintiff appellant by his own negligence was left high and dry. Learned counsel for the appellant vehemently contended that on merits he has a very good case. He may have a very good case in his favour but as his suit is time-barred and there being no power to condone the delay, it has been rightly dismissed by the court below. However, learned counsel for the appellant submitted that the period of limitation of one year would apply to those cases wherein orders under Order 21 Rule 58 were passed on merits and adjudicated upon. But in case where such orders are passed on default of appearance of parties and such applications are dismissed for default, it cannot be said that such an order would attract the period of limitation prescribed by I