JUDGMENT : This second appeal arises out of a suit instituted by the appellants under Order 21, Rule 103 of the Code of Civil Procedure. The relevant facts are as follows : The appellants instituted a suit against two persons Moreshwar and his brother Madhao for the recovery of money. That suit was civil suit No. 16/32. Ultimately, a consent decree was passed therein on 2-12-1932. In accordance with the terms of that decree, the amount was payable in instalments and for the recovery of that amount, a charge was created over certain property belonging to the two brothers, including a house situate in Circle No. 9/11 in Nagpur. This decree was eventually registered on 7-8-1933.

(2) One Gangabai had obtained a money decree against Moreshwar and Madhao in civil suit No. 1478/34. In execution of that decree, she attached the house aforesaid and put it to sale through; the Court and that house was purchased by the respondent for Rs. 400/- on 6-10-1943. The sale was eventually confirmed on 4-12-1943 and the respondent was placed in possession of the house on 25-2-tt944.

(3) During this period, the appellants were also taking steps to realise their charge. In those proceedings the respondent put in an objection to the sale of the house but his objection was summarily rejected on 3-12-1943. He therefore instituted a suit for a declaration of his rights against the appellants but withdrew that suit on 29-7-1944 without obtaining liberty to bring a fresh suit on the same cause of action. While this suit was pending, the house in question was sold for realisation of the charge in favour of the appellants and was purchased by them on 2-3-1944. The sale was confirmed in their favour and a sale certificate was granted to them on 13-10-1944.

(4) In pursuance of the aforesaid sale certificate, the appellants applied under Order 21, R. 95 of the Code for delivery of possession. The application in that regard was made on 15-4-1946 and a warrant for possession was issued. The execution of the warrant was, however, resisted by the respondent on 17-10-1946. The appellants did not make an application under Order 21, R. 97, within 30 days of the date of resistance, but instead applied for a fresh warrant of possession. Such a warrant was issued in their favour and they attempted to execute it. They were again resisted by the respondent from obtaining possession on 10-4-1947. Thereafter, they made an application under Order 21, Rule 97 on 21-4-47. This application was dismissed by the executing Court on 15-12-1947 on two grounds; one ground was that the application was barred by time as it had not been made within 30 days of the initial resistance to the faking of possession made by the respondent on 17-10-1946. The other ground was that the respondent was not the judgment-debtor of the appellants. Thereupon, the appellants preferred an appeal to the High Court at Nagpur. That appeal was dismissed by V. R. Sen J. on 14-3-1951, and the grounds on which he dismissed the appeal were the same which were given by the executing Court.

(5) During the pendency of the appeal, which the appellants had instituted to challenge the order of the executing Court under Order 21, Rule 103, they instituted the present suit for a declaration in which they have sought a declaration to the effect that the respondent was not entitled to resist deli-very of possession on the ground that they had purchased the property in execution of a charge decree. The suit was resisted by the respondent on various grounds and was dismissed by the trial Court. An appeal was then preferred by the appellants against the decision of the trial Court, but that appeal was also dismissed.

(6) What is contended before me on behalf of the respondent by Shri Tare is that a suit of this kind is barred both by limitation as well as by virtue of the provisions of Sec. 47 of the Code of Civil Procedure. According to him, the proper course for the appellants1 would have been to make an application under Orde

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