The main legal point established is that the order of attachment under Section 146, Criminal P.C. does not constitute legal dispossession, and the possession of the Magistrate and the receiver appointed is on behalf of the parties who may eventually prove themselves entitled to possession.

Srinivasa Ayyangar, J.

1. In the suit from which this second appeal arises the appellants were defendants. The plaintiffs action was for recovery of possession of the suit property and mesne profits on the ground that in a previous litigation between the parties which finally ended in Second Appeal No. 457 of 1915 on the file of this Court the plaintiffs title to the property was declared and recognized. This suit, however, was rendered necessary because, taking advantage of the fact that in the District Munsifs Court in that litigation the defendants who were the plaintiffs obtained a decree, they had gone soon after to the Magistrate and on the basis of that decree obtained possession of that property with reference to which the Magistrate had made certain orders and appointed a Receiver under Section 146, Criminal P.C.

2. Three contentions have been raised before us by the learned Counsel for the appellants. His contention was that the plaintiffs suit is barred by the law of limitation. In this connexion it may be noted that, though limitation has been raised perhaps as usual in most cases by the defendants in their written statement the exact manner in which it is now contended on their behalf that the claim is barred by limitation has not been indicated. The learned Counsels argument was this: it was really twofold. First it is stated that on 19th April 1915, the Magistrate made the order by which possession of this property was given to the present defendants. It was argued by him that under Article 47, Lim. Act, it was incumbent on the plaintiff to institute a suit within three years of the date of the order of the Magistrate and that otherwise the suit should be held to be barred by the law of limitation. There was some question raised on behalf of the respondent by Mr. Rajah Aiyar that the real date of the order was not the 19th April, but the 19th November, and, if the latter date should be the real date, no question of limitation arises with regard to this order of 19th April, Ex. G and the suit was within three years of 19th November 1915. There is, no doubt, in the record some doubt and discrepancy with regard to the date of this document? It becomes material to observe that the plea of limitation raised by the defendants was not directed with regard to this order or the date thereof specifically and that, therefore, the plaintiff had no notice that the date of this order would become in any manner important to be considered. We may, however, observe generally speaking though, no doubt, questions of limitation may be allowed to be raised even in second appeal and even though not raised originally in the defence, still, if the decision on the question of limitation should depend ultimately on certain facts and if the other patry to the action should have had no notice of the contentions of the party setting up the plea of limitation with regard to these facts, it would be unjust to allow such a plea to be raised at a very late stage. In this ease, however, there seems to be really no doubt that the 19th April was the real date of the order. But then comes the question whether this Article 47 is the article applicable to this present action. The article says that the suit must not only be "one to recover property comprised in an order of the Magistrate" -and so far as that is concerned this suit is alright-but that

the parson suing, that is, the plaintiff must be a parson bound by an order respecting the possession of immovable property made under the Criminal Procedure Code, 1898.

3. Taking those words substantially, there can be very little doubt that the suit contemplated by the first column of that article is a suit virtually to set aside the effect of a magisterial order with regard to the possession of immovable property. Now, can this suit be so described? It seems impossible to regard this suit as capable of being so described, What happened is this. An original order of the Magistrate was passed in 1909