Daulatram Mohandas vs Sugrabai Rajjabali Heera

V.G. Wagle, J.—This is an appeal against an order directing a plaint to be returned to the proper Court under O. VII, r. 10 of the Civil Procedure Code. The events that led to this order are the following :

Civil Suit No. 308 of 1963 was filed in the City Civil Court by the present appellant against a firm and two partners. An attachment before judgment was obtained of properties situated in Poona on the grounds (1) that they belonged to the defendants and (2) that the properties were likely to be disposed of to defeat the claim of the present plaintiff. On May 2, 1963, a decree was obtained and naturally the attachment before judgment continued after the decree.

On December 20, 1963, an application was made by the present respondents, the sisters of the two partners, claiming the property as their own and denying the right of the present appellant to attach the properties in satisfaction of his decree obtained in Civil Suit No. 308 of 1963. This application made by the present respondents was granted and the attachment was raised on February 27, 1964.

The decree-holder in Suit No. 308 of 1963 then filed Suit No. 1530 of 1964 in the City Civil Court on March 7, 1964 inter alia claiming the restoration of the attachment which was set aside and also an injunction against the defendants prohibiting them from claiming any interest in the said property and/or contesting the right to recover the decretal amount due to the plaintiff in Suit No. 308 of 1963 by attachment and sale of the immovable property. A contention was taken up by the defendants that since the immovable property was situated outside jurisdiction and the defendants were also residing outside jurisdiction and did no business within the jurisdiction of the City Civil Court, the Court had no jurisdiction to entertain the suit. It was prayed that the suit be dismissed.

The trial Judge after considering the arguments advanced by the parties and also the various decisions cited before him came to the conclusion that in view of the property being situated outside the original jurisdiction of the City Civil Court and having regard to s. 16 of the Civil Procedure Code, the City Civil Court had no jurisdiction to entertain the suit. The plaint, therefore, was directed to be returned for presentation to the proper Court under O. VII, r. 10 of the Civil Procedure Code. Against that order the plaintiff has come in appeal. The respondents although served remained absent and were not represented by an advocate.

Mr. Rele who appears for the appellant contends that this decision of Judge Mr. Hattangadi is contrary to the decision of a single Judge of this Court in Khemchand & Co. v. Shivdanmal. (1060) 62 Bom. L. R. 985 The facts of the case in Khemchand & Co. v. Skivdanmal were as follows : The defendants had obtained a decree in the Bombay City Civil Court against M/s. Raghunathrai Shrinivas for a sum of Rs. 6, 547-2-0 and in execution of the decree a particular property was attached as belonging to the defendants. The plaintiffs'' firm filed an application under O. XXI, r. 58 for having the attachment raised on the ground that the said articles belonged to the plaintiffs-firm and its partners. The claim of the plaintiffs was allowed in respect of certain items and disallowed in respect of certain other items. In respect of the items for which the claim of the plaintiffs was disallowed, the plaintiffs filed a suit for a declaration that they were not liable to be attached because they belonged to the plaintiffs-firm. This suit was filed in the Court of Small Causes at Bombay. The defendants to the suit raised a preliminary objection that inasmuch as the order of attachment was passed by the City Civil Court and the suit was for the purpose of setting aside the order, the Court of Small Causes would have no jurisdiction to entertain the suit. The Court of Small Causes upheld this objection. Against this order the High Court was approached in revision. It was urged before the learned Judge that the order passed by the Court of Small Causes was wrong and that the Court of Small Causes had jurisdiction to entertain the suit. The learned Judge observed as follows (p. 988) :

We have got the observations of the Privy Council, as pointed out above, that the aim and object of a suit of this nature is to set aside the order passed by the Court in execution under O. XXI, r. 58. If that is the effect of a decree that may be passed in a suit of this nature, then the suit could only be cognizable by the same Court in its ordinary jurisdiction which was executing the decree passed by itself or at best in a Court of concurrent jurisdiction, but certainly not in the Small Causes Court, to which, as stated above, the CPC does not. apply as a whole, but only such of the provisions thereof as have been made applicable by the Rules made by the High Court under s. 9 of the Presidency Small Cause Courts Act.

What was urged by Mr. Rele was that earlier observations of the learned Judge were clearly to the effect that the only Court which had jurisdiction to entertain such a suit was the Court which under its ordinary jurisdiction had passed the order under O. XXI, r. 58 in execution of its own decree and no other Court. However, the observations at p. 988 which are detailed above do not go to the extent of holding that the Court in which the execution application was decided could be the only Court in which such a suit could be filed. The learned Judge also seems to have been influenced by the restricted jurisdiction of the Court of Small Causes to hear suits of this nature.

In order to support the jurisdiction of the Court of Small Causes to hear such suits, it was pointed out by the learned counsel who argued the matter before the learned Judge in Khemchand &.Co. v. Skivdanmal, that the Small Cause Court was given the jurisdiction by rules made by the High Court applying the provisions of O. XXI, rules 58 to 63 to the Court of Small Causes.

The learned Judge, however, held that this extension of the jurisdiction of the Court of Small Causes to hear suits in relation to rights to immovable property was only restricted to suits filed in relation to orders passed in the Court of Small Causes and to no other suits. Considering the final observations of the Court, I find that the learned Judge did not decide that the suit had to be filed in the Small Causes Court and no other Court if the earlier order in execution were passed by the Small Causes Court.

It is undoubtedly true that the learned Judge has proceeded on the basis that the suit which is provided for by O. XXI, r. 63 is a suit for setting aside an order passed in execution proceedings by a Court while hearing an application under O. XXI, r. 58. The provisions of the law, however, are not in conformity with this opinion. Order XXI, r. 63 under the provisions of which the present suit is filed reads as follows :

Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

A suit filed under O. XXI, r. 63 has not to set aside an earlier order passed in execution. The effect of the order, however, passed earlier by the Court executing a decree is controlled by the final orders to be passed in the suit filed under the provisions of O. XXI, r. 63. Declaring the effect of an order as subject to some other order does not lead to an inference that the previous orders have necessarily to be set aside or are expected to be set aside. In fact the wording of O. XXI, r. 63 makes it abundantly clear that it is not necessary to set aside an earlier order, A finality is given to the earlier order subject to contrary orders being passed in a suit filed under O. XXI, r. 63.

Such an interpretation was put upon O. XXI, r. 63 in an earlier decision of this Court in Babaldas Trikamdas and Co. Vs. Ajmir Ramsunder, . Sir John Beaumont C. J. while deciding a similar point observed as follows ( p. 894 ):

My own view is that the proper form of order in such a suit as this is not to set aside the order made under r. 60, which the Court had jurisdiction to make, but to direct that, notwithstanding the order previously made under r. 60, the attachment is to continue.

This is a clear expression of opinion that the suit under O. XXI, r. 63 is not a suit for setting aside an earlier order passed by the executing Court. The learned Chief Justice was deciding a point which was urged before him that the Privy Council in Bibi Phul Kumari v. Ghanshyam Misra I. L. R. 35 Cal.202 (P. C.) = (1907) 10 Bom. L. R. 1 had decided that such suits under O. XXI, r. 63 the corresponding provision of which in the earlier Code was s. 283 were for the express purpose of setting aside the earlier order.

Mr. Rele appearing for the appellant also contended that the decision of the Privy Council was expressly to the effect that the suit was intended to set aside the earlier order. In the first place, the decision of Bibi Phul Kumari v. Ghanshyam Misra was restricted in its interpretation to a provision in the Court-fees Act then in force. The question that arose before the Privy Council was about the particular provision of the Court-fees Act which applied to such suits. In coming to a conclusion regarding the value of the subject- matter of such a suit their Lordships held that since the aim and object of the suit was to set aside an earlier order passed by the executing Court, the suit could not be considered as an original action within the class of cases where the Court-fees are ad valorem of the action. The question of jurisdiction of a Court to entertain a particular suit was certainly not a point before their Lordships of the Privy Council. In the law of Court-fees that was obtainable then their Lordships decided that a particular item covered the Court-fees to be paid on such suits. What was held was that the aim and object of the suit was to set aside an order, not that a prayer in the suit was necessary to have the order set aside. The order can be set aside either by seeking a fresh order from the Court setting aside the order or by getting from the Court such an order as would make the earlier order ineffective or nugatory. In either case, the aim and object of the suit is the same but in one case the suit is specifically to set aside an earlier order whereas in other case there is no such specific suit for this purpose. The same object could be achieved in both these types of suits. The decision of the Privy Council not being in relation to jurisdiction of the Court, merely from the statement to be found in the judgment that the aim and object of a suit being to set aside an order, no inference can be raised that the Privy Council had decided that this suit was expressly to get the order set aside.

The wording of O. XXI, r. 63 makes it abundantly clear that the earlier order passed by the Court on applications made under O. XXI, r. 58 has not to be set aside but the rights between the parties claimed by them are to be determined in such a suit.

Mr. Rele referred to the decisions of the Madras High Court in this connection in Palani Mudaliar and Others Vs. Kaveri Ammal and Another, and Pandiyan Pillai Vs. K.V. Vellayappa Rowther and Another, , but in both these cases the points in dispute were regarding the jurisdictions of the Court of Small Causes and the City Civil Court in Madras. One thing to be noted in this connection is that territorially both the Courts viz. the Court of Small Causes in Madras and the Madras City Civil Court had jurisdiction over the subject-matter of the suit. That is the point of distinction which is to be borne in mind while considering the jurisdiction of a Court to entertain a suit. Territorially there could be no objection to the jurisdiction being exercised either by the Court of Small Causes or by the City Civil Court in Madras in respect of these two suits.

Two other cases were cited, viz. S.A. Rajamier Vs. M.R.M.A. Subramaniam Chettiar and Others, and Muhammad Yusuf Sahib Vs. The Province of Madras, wherein it was held that the suit under O. XXI, r. 63 was only a continuation of the proceedings in execution. It was, therefore, urged that since the suit is only a continuation of the proceedings it must continue in the Court in which the earlier proceedings were filed. Both the decisions were in respect of notice to Government under s. 80. It was held that since the Government had notice of the earlier proceedings of which the subsequent proceedings were a continuation, no fresh notice was necessary to Government for filing a suit against it under the provisions of O. XXI, r. 63. The question of jurisdiction of a Court having no territorial jurisdiction to entertain a suit did not arise in respect of any of these decisions. The decisions therefore upon which reliance was placed by Mr. Rele do not support his contention that in spite of s. 16 of the CPC a suit under O. XXI, r. 63 can only be filed in the Court which had passed the order on an application made to it under O. XXI, r. 58.

Even the judgment of this Court in Khemchand & Co. v. Skivdanmal on which reliance is placed by Mr. Rele does not go to the extent of holding finally that the only Court in which such a suit could be filed under O. XXI, r. 63 would be the City Civil Court if the application under O. XXI, r. 58 was disposed of by the City Civil Court. I am of opinion that this particular question of a Court having no jurisdiction under s. 16 or any other provisions of the CPC entertaining a suit under O. XXI, r. 63 did not arise in Khemchand & Co. v. Shivdanmal. That is a question that arose in the present proceedings. Considering the wording of O. XXI, r. 63 and the nature of the suit, I find that this suit falls squarely within the provisions of s. 16 (d) of the Civil Procedure Code. The relevant portion of s. 16 (d) is in the following terms :

Subject, to the pecuniary or other limitations prescribed by any law, suits-....

(d) for the determination of any other right to or interest in immoveable property, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.

There is no doubt that the property is situate in Poona. The only question is whether the suit is for determination of any other right to or interest in immovable property. Although the aim and object of the suit is to have the earlier order passed by the City Civil Court nullified, none the less it is necessary for the plaintiff to have it determined that he has a right to have the property in dispute attached and sold in execution of his decree. The decree-holder is entitled to have his judgment-debtor''s property attached and sold in satisfaction of his decree. It is, therefore, necessary in the instant case to determine the right of the judgment-debtor to this property in order to enable the plaintiff to claim that property in attachment. The defendants to the suit however have claimed such, interest in the property as would exclude any right of the judgment-debtor to this property. Whether the defendants succeed in doing so is not a matter with which I am concerned at present. There is, therefore, a direct issue between the parties whether the judgment-debtor has any interest in the property which could be attached and sold or whether the judgment-debtor has no interest in the property which could be so dealt with, by an executing Court. This, according to me, is a clear suit for determination of other rights to any immovable property. The claim under s. 16 (d) is to a right other than for recovery of immovable property, partition of immovable property or for foreclosure, sale or redemption in the case of mortgage or a charge upon immovable property. The wording of O. XXI, r. 63 is also to similar effect. The suit that is to be filed under O. XXI, r. 63 is to establish the right which the plaintiff claims to the property in dispute. The plain meaning of the wording of O. XXI, r. 63 clearly brings the suit within the provisions of s. 16 (d) of the Civil Procedure Code. The learned Judge, therefore, was right in holding that the City Civil Court had no jurisdiction to entertain the suit.

In the result, the appeal fails and is dismissed. No order as to costs.