Full Judgment
Pandrang Row, J.
1. In this Second Appeal the only point argued and that is the only point of law that arises in this Second Appeal, is, whether the suit is barred by limitation. The suit is one for recovery of the amount due on a mortgage deed, and prima facie as the deed was executed in 1926 and the suit was brought in 1931, it would not be barred under the ordinary rule of limitation relating to suits on mortgage deeds. It is however contended that the suit is barred because a previous claim petition made in respect of this very mortgage right by the plaintiff in certain execution proceedings was dismissed after it was withdrawn by the plaintiff himself, and that though this dismissal was the' result of the withdrawal of the petition, it must be deemed to be an order against the claimant, and therefore under Order 21, Rule 63, Civil P.C., the dismissal was final unless set aside by a suit within one year from the date of the order of dismissal. The only question therefore for decision is, whether the order on the claim petition in question is an order which can be said to be an order against the claimant.
2. Reliance has been placed on the Full Bench decision in Venkatarathnan v. Renganayakkamma 1919 Mad 738, but it is clear from the two decisions which were relied upon by the lower appellate Court, namely the decisions in Lakshminarasamma v. Pydanna 1925 Mad 265 and Lingamma Naidu v. Official Receiver, Madura (1928) 110 IC 511, which were subsequent to the Full Bench decision, that the Full Bench decision cannot apply to the facts of this case. The cases decided in Lakshminarasamma v. Pydanna 1925 Mad 265 and Lingamma Naidu v. Official Receiver, Madura (1928) 110 IC 511, were cases decided by a Bench of two Judges, and they clearly show that where, as in the present case, the claim petition is withdrawn, Order 2L, Rule 63, Civil P.C., does not apply even though there is a formal order of dismissal also. In' both these cases it was held that where a claim petition is withdrawn and it is dismissed in consequence of such withdrawal a suit filed more than a year from the date of the order is not barred under Order 21, Rule 63, Civil P.C., or, in other words, such an order is not an order against the claimant, and the plain meaning of the word 'against'' which is a word in common use, would also show that when a petition is withdrawn it cannot be said that there is an order against the person who withdraws the petition, and, in fact, asks the Court not to decide either for or against him. I am therefore of opinion that both the Courts below were right in coming to the conclusion that the suit was not barred by limitation. It follows from his that the Second Appeal must fail and it is dismissed.