JUDGMENT : BANERJI, J. 1. The question in this appeal is whether the suit of the plaintiff-respondent is barred by the provisions of article II of the second schedule to Act No. XV of 1877. The facts are these :—Tulshi and Munshi, sons of one Kashmiri, inherited certain property from their father, which they mortgaged to one Niader. He obtained a decree for sale, and in execution thereof applied for sale of the mortgaged property, which consisted of a house. During the pendency of the execution proceedings the respondent, Musammat Shibbi, the mother of the mortgagors, brought a suit against Niader for a tion that she had a right of residence in her husband's house and that it could not be sold in execution of the decree obtained by Niader. On the 23rd of June, 1904, her suit was dismissed by the coart of first instance. She preferred an appeal, but before the disposal of the appeal the property was sold by auction, and the appellant, Shagun Chand, purchased it. On the 20th of December, 1904, he obtained formal delivery of possession. On the 21st of the same month, Musammat Shibbi made an application under section 335 of the Code of Civil Procedure, 1882, to be restored to possession of a room in the house. The court issued the usual notice and fixed a date for the hearing of the application. On that date, the pleader for Musammat Shibbi stated that his client did not wish to adduce any evidence. Thereupon the court passed an order in the following terms :—“The applicant has not adduced any evidence. The application is accordingly dismissed.” This order was passed on the 21st of January, 1905. On the 13th of April, 1905, the appeal preferred by the respondent, Musammat Shibbi, from the decree of the court of first instance dismissing her claim in the suit brought by her, was decided in her favour. It was declared that she was entitled to occupy the kotha in the house which she had been using and that it should not be sold in execution of Niader's decree until provision for her residence elsewhere was made. It was declared that she was entitled to occupy the kotha in the house which she had been using and that it should not be sold in execution of Niader's decree until provision for her residence elsewhere was made. Thereupon, on the 1st of May, 1908, i.e., after the lapse of more than three years, from the date on which her application under section 335 was dismissed, she brought this suit out of which this appeal has arisen for possession of the kotha of the house sold by auction in execution of Niader's decree referred to above. It was urged on behalf of the auction purchaser defendant, that the claim was barred under article 11 of the second schedule to Act No. XV of 1887, as it had not been brought within one year of the date of the decision under section 335 of the Code of Civil Procedure. 2. The courts below have overruled this plea, but it has been repeated in the appeal before me. I am of opinion that the contention is well founded. As has already been been stated, the plaintiff made an application under section 335 of the Code of Civil Procedure, the court heard the application but as no evidence was adduced to support it, the court dismissed it. 3. The order of dismissal was conclusive unless a suit was brought within one year of the date of it. As the present suit was brought after more than three years; it is clearly governed by the provisions of article 11 and is time-barred. The courts below have relied on the case of Sarat Chandra Bisu v. Tarini Prasad Pal Chowdhry, [1907] I.L.R., 34 Cal, 491 and this case has been cited by the learned vakil for the respondent in support of his argument that it was not necessary for the plaintiff to bring a suit within one year of the date of the order under section 335, inasmuch as no inquiry was made by the court in that case. In my judgment the ruling referred to is not applicable to the circumstances of the present case. In that case the petitioner applied to withdraw his petition, and therefore the court dismissed it for default of prosecution. It was held that as there was no inquiry within the meaning of section 335, the order of dismissal was not conclusive and the suit was not barred. In that case the petitioner applied to withdraw his petition, and therefore the court dismissed it for default of prosecution. It was held that as there was no inquiry within the meaning of section 335, the order of dismissal was not conclusive and the suit was not barred. That is not the case here. In the present instance the court fixed a date for hearing. On that date the court was prepared to decide the case, but the plaintiff's pleader stated that she did not wish to adduce evidence, and therefore for want of evidence the application was dismissed. It cannot be said under these circumstances that there was no investigation or inquiry. The application was not withdrawn by the plaintiff, but she adduced no evidence in support of it. As observed by their Lordships of the Privy Council in Sardhari Lal v. Ambika Pcrshad, [1888] I.L.R. 15 Cal., 521 “the Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. The order is not conclusive; a suit may be brought to claim the property notwithstanding the order; but then the Law of Limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought.” This case is similar to that of Rahim Bux v. Abdul Kader, [1904] I.L.R., 32 Cal., 537. In that case also, as in present, the claimant failed to adduce any evidence notwithstanding that he had been allowed an opportunity to do so. It was held that the order was conclusive and that the suit should have been brought under Article II, Schedule II of the Limitation Act within one year of the order dismissing the application. In that case also, as in present, the claimant failed to adduce any evidence notwithstanding that he had been allowed an opportunity to do so. It was held that the order was conclusive and that the suit should have been brought under Article II, Schedule II of the Limitation Act within one year of the order dismissing the application. I may also refer to the case of Lachmi Narain v. Martindell, [1897] I.L.R., 19 All., 253 which was a case under the Rent Act, but the same principle was applied. 4. The learned vakil for the respondent referred to Bibi Alirnan v. Dhakeshwat Prasad Narain Singh, [1904] I Cal., L.J., 296. That case is, in my opinion, against him rather than in his favour. In that case the learned Judges observed, “The fact that the claimant did not choose to instruct any pleaders or to adduce any evidence in support of her case on the day of hearing, is not sufficient to take her case out of the statute.” 5. As the plaintiff in the present case preferred to make an application under section 335 of the Code of Civil Procedure, 1882, and as that application was dismissed, the order of dismissal was conclusive between the parties, unless a suit was brought to establish her right within one year of the date of it. As the present suit was brought after the lapse of more than one year, it is time barred. I accordingly allow the appeal, set aside the decrees of the courts below and dismiss the plaintiff's suit with costs.