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3. Leaving out the other portion of the two rules which are not material for our purpose, the wording in so far as it is material may be set out thus:

Rule 63. Rule 103.
May institute a suit to establish the right "May institute a suit to establish the right which he claims to the property in dispute. " which he claims to the present possession of the property. . . "

4. The difference between the expression " May institute a suit to establish the right which he claims to the property in dispute," and the expression " May institute a suit to establish the right which he claims to the present possession of the property" is, I think, immaterial. As has been held by this Court the order in the execution department will be conclusive as regards the title of the parties if no suit is filed within one year. So far as the execution department is concerned enquiry is no doubt confined to the question whether the person objecting to delivery or claiming re-delivery in one case or objecting to the attachment in the other case was in possession in his own right and not on behalf of the judgment-debtor. But once an order is made against a particular party, be he the decree-holder or the objector, the suit should be filed by the unsuccessful party and if not, the right which he claims to the property will be lost. It is enough in this connection to refer to a recent decision of the Chief Justice and Rajamannar, J., in Kaleswarar Mills, Ld. v. Govindaswami Naicker (1945) 2 M.L.J. 403. Rajamannar, J., who delivered the judgment has gone through the question at length and after referring to the earlier decisions of this Court and of the other Courts, has pointed out that if the title which is put forward as the basis of the suit is the same as the title which is put forward in the execution proceedings as the basis for an order in his favour, then Rule 103 will be a bar but not otherwise. One case which is referred to in that judgment is instructive and that is the decision of the Calcutta High Court in Ambica Charan Bakta v. Ram Prosad Chatterjee (1925) 30 C.W.N. 163. There, the landlords obtained a decree for arrears of rent and in execution of that decree purchased the holding and took possession. Later on, they were dispossessed by and order of the Court passed at the instance of the defendants who claime possession of the property on their own account and not on behalf of the judgmentdebtors. More than a year afterwards the landlords abandoned the rights under their auction-purchases in execution sale and filed a suit for ejectment on the ground that the tenants wrongfully parted with the holding, that the transfer worked out a forfeiture of the tenancy and that the transferees were therefore liable to be ejected. The order passed by the Court in the execution proceedings was sought to be relied on to defeat the plaintiffs' claim for possession. It was then pointed out that the cause of action for the two suits, one under Rule 103 and the other on forfeiture of the tenancy on account of the alienation were quite different. It was further pointed out that in the later suit the plaintiffs actually acquiesced in the validity of the order passed under Order 21, Rule 101 and in fact gave up their rights under their purchase in execution sale. But they only claimed rights which were given to them under the Bengal Tenancy Act. It was pointed out that in such cases, the one-year rule will not apply. In the present case, unfortunately, the petition on which the previous order was passed has not been exhibited. It is not known what exactly the allegations were. Therefore it cannot be said that the cause of action or the title on which the present suit is based was the very same title on which the relief was asked in E.A.. No. 170 of 1938. That is enough to dispose of the matter. But it may be pointed out that there is yet another rule which is laid down by this Court and that is, if the relief that is asked in the later suit is not one which the plaintiff could have got in the execution department, then the fact that he did not pursue the remedies given under the execution chapter will not bar the later suit. The present suit is one for redemption. The plaintiff recognises that without redemption and without offering to pay the amount due under the mortgage he cannot get the relief of possession. That is one distinction. The other is that in the present suit he asks, at any rate in the alternative, for partition and delivery of his one-fourth share. This, again, he cannot get in the execution department. If, in the execution department, he had said that he was entitled to an undivided one-fourth of the whole, he would have been told that he could not get relief by way of partition in the petition E.A. No. 170 of 1938. For these reasons I hold that the suit was not barred under Article 11-A of the Limitation Act.