Judgement

Appeal from a decree of the above Court (May 26, 1891) reversing a decree of the District Judge of Lucknow (March 24, 1890).

The suit was brought by Nawab Badshah Sahiba (the ex-Queen of Oudh) against the appellant for—(a) a declaration that the sale on October 22, 1884, of village Para, made in the suit of Mirza Muhammad Mohsin and others (Aghas representatives) against Muhammad Yusuf and Muhammad Nasim, was invalid, defective, and ineffectual as against Ha.kim Muhammad Masih (the plaintiffs vendor) and his heirs, and that the possession held by the defendant by virtue thereof was also illegal ;

(b) a declaration that, according to a decision of the Judicial Commissioner of Oudh, on November 4, 1885, in appeal in a suit brought by the said Hakim Muhammad Masih against the representatives of Mirza Haidar Husain (otherwise called Agha) and the said Muhammad Yusuf and Muhammad Nasim, the said village was the property of the said Hakim Muhammad Masih, and liable as such to attachment and sale in execution of a decree of the High Court of Calcutta, in favour of the said Nawab Badshah, dated December 22, 1881, and in execution of which decree the said village Para had been attached on December 28, 1887.

The facts are stated in the judgment of their Lordships.

The plaint stated that the representatives of Muhammad Masih had, after an unsuccessful objection to the attachment in execution of the mortgagees decree of March 20, 1883, succeeded on appeal on November 4, 1885, in establishing his title to the property against Muhammad Yusuf and Muhammad Nasim (the mortgagors), and the representatives of Haidar Husain Khan (otherwise called Agha, the mortgagee) ; and stated further the attachment by the plaintiff in execution of her decree, and the release of the property from attachment upon the objection of the appellant.

The defendant relied in his written statement upon possession under his purchase on October 22, 1884, at the sale in execution of the mortgagees decree; and contended that the property was not liable to attachment or sale as the property of Muhammad Masih until after the sale to him (the appellant) had been set aside. He also contended that the suit was barred by limitation, and in particular by the limitation of one year, which he contended was applicable to the case, in consequence of an order in his favour of November 1, 1886, under s. 332 of the Civil Procedure Code, directing his restoration to possession of the one-third of the property of which Amina Begam, one of Masihs heirs, had obtained possession. He also contended that Sahib-un-nissas decree (i.e. the decree in execution of which Masih bought) did not affect Haidar Husain or himself; and he altogether disputed her lien on the property.

The District Judge dismissed the suit, holding it barred under arts. 12 and 13 of the 2nd schedule of the Limitation Act (XV. of 1877). He also held that the appellant was not affected by the decree of November 4, 1885, against the representatives of Haidar Husain, Yusuf, and Nasim ; and that the plaintiff could not maintain her claim to possession until the sale to the appellant had been set aside. He held that, " as against the heirs of Agha Haidar Husain, Yusuf and Nasim, Muhammad Masih was the proprietor of Para Kuru," but that the appellant, not being a party, was not bound by the decree of November 4, 1885. He upheld Sahib-un-nissas lien under her decree as against Ashgar Ali and Yusuf, and as against Haidar Husain so far as he claimed through them.

The Judicial Commissioner sitting with the Additional Judicial Commissioner reversed the decree of the District Judge, and granted the relief claimed by the plaintiff, with costs. They held—(a) that the suit was not barred, whether s. 332 or s. 278 of the Code was applicable to the proceedings which followed the decree of November 4, 1885, or not; (b) that the suit was maintainable without setting aside the appellants purchase, inasmuch as nothing passed under the s