Lakshmi Ammal vs Kadiresan Chettiar and Another

Spencer, J.—Relying on the Full Bench case in Venkataratnam v. Ranganayakanima 35 M.L.J. 335 Mr. Krishna-swamy Aiyar asks us to

hold that the District Munsif''s order dismissing 1st defendant''s claim petition on 15-6-14 became final in consequence of 1st defendant''s failure to

set it aside by instituting a suit within one year. This point was not raised until the present suit reached the stage of the first appeal and might be

disallowed on that ground.

But it may be answered directly as the Lower Appellate Court allowed it to be argued and as we have heard full arguments in this Court.

In Venkatratnam v. Ranganayakamrna 35 M.L.J. 335 Seshagiri Iyer J, observed. "" The language of Order 21, Rule 63 leaves little room for

doubt that all orders which negative the right set up by the claimant or the decree holder are within the rule.

Was then the District Mun%if''s order dated 15-6-14 one that negatived the claimant''s right. It runs thus: ""Sale stopped. The claim cannot be

investigated by this Court. Petition dismissed."" The order was thus based on two circumstances, first, that the execution was not proceeded with in

the District Munsif''s Court, second, that u/s 63 Civil Procedure Code, the only court having jurisdiction to adjudicate on the claim was the Sub-

Court. The petition was dismissed, because the District Munsif has no authority to dispose of it and because it became unnecessary to investigate

the claim when the sale was stopped. In my opinion this order was not passed under Order 21 CPC which relates to the investigation of claims,

but was passed in the course of execution. It did not negative the right set up by the claimant, but it was an order declining to adjudicate either for

or against him; and upon the substance of his claim it cannot be treated as an order more against him than against the decree-holder. Under such

circumstances 1st defendant was not bound to set it aside (see Ponaka Balarami Reddi and Others Vs. Hazi Mahomed Abdul Aziz Badshah Sahib

and Others, . and Gollamapalli Subbayya v. Sankara Venkataratnam (1917) M.W.N. p. 851. So far as the order was in substance an order u/s

63 CPC it is worthy of note that this section falls under the head of attachment in Part II of the new Code, the corresponding Section 285 of the

Code of 1882 being groifped alsongside with Sections 278 to 283 which related to the investigation of claims and objections and corresponded to

Rules. 58 to 63 of Order 21. This fortifies me in the view I have taken that it was not an order disposing of the claim set up by 1st defendant. This

is the only point argued and as it fails, the lower appellate court'' judgment must be upheld and the Second Appeal dismissed with costs.

Ramesam, J.

The plaintiff has not sought to base his claim nvthe pLalnt on the construction of the order (Exhibit-VII) dated 15-6-14 for which he now

contends. It is clear he was content to accept it as an order not negativing the claimant''s right. Nor was the point raised in the issues or at the trial

before the District Munsif. He raised it for the first time before the Sub Judge as respondent. Mr. K.V. Krishnaswami Aiyar contends that he ought

to be allowed to raise it as it is a pure question of law. It is true that, when a new question is a pure question of law, it may be allowed to be raised

in the discretion of the court hearing the Second Appeal. I do not think that, having regard to the somewhat unhappy language of the District

Munsif and the conduct of the parties that we ought to exercise our discretion in favour of the appellant. Mr. T.M. Krishnaswamy Iyer contends

that, after the Munsif''s expression of his opinion that the Sub Judge was the proper person to decide the claim petition, the decree holder ought to

have applied to the Subordinate Judge to be made a party to the enquiry in that court and in the absence of such an application, the order of the

Sub Judge (Exhibit II dated 1-9-14) binds him. That it is open to him to so apply seems to follow from Arhnuthu Chetty v. Vyapuri Pandaram ILR

(1911) Mad. 588. At this stage I am bound to observe that Section 63 of the Code is defective. It does not point out the procedure to be

followed by the decree-holders in the inferior court and how the higher court is to pass a decision so as to bind them.

Whether the order of tihe Sub Judge is to.be upheld as the final order on the claim petition or not, I agree with my learned brother in holding that

Ex. VII cannot be taken to be an order negativing the claimant''s right. But for this view, it would be necessary to consider the further question

whether the order Ex. VII (Supposing it is an order negativing the right put forward by the claimant) has not to be set aside within a year, the

attachment against which the claim was made, having terminated (See Ex. I) and the decree-holder having made a fresh attachment followed by a

fresh claim-petition and a fresh order (Ex. A) allowing the claim. On this point, I am inclined to agree with the decisions in Ponaka Balarami Reddi

and Others Vs. Hazi Mahomed Abdul Aziz Badshah Sahib and Others, followed by Gollam-palli Subbayya v. Sankara Venkataratnam (1917)

M.W.N. 851 and with the decision in, Umesh Chunder Roy v. Raj Bullubh Sen ILR (1882) Cal. 279 and Ibrahimbhai v. Kabulabhai I.L.R.(1818)

13 Bom. 72 and Kamini Kant Roy v. Ram Nath Chucker butty ILR 21 C. 265 cited therein, I do not think that the decision in Ramasamy Chetty

v. Alagiri Chetty (1915) 27 I.C. 800 supports the conclusion drawn in Singaram Chetty v. Chinnabhi (1920) 40 M.L.J. 7 from the decision in

which I respectfully dissent. The conclusiveness of the order on claim petitions provided for by Order 21, Rule 63 is really a subordinate branch of

the rule of res judicqta and should be limited not only to the parties to the order but also to the claims put forward and to other rights worked out in

pursuit of those claims. To hold otherwise is really to say that a decree or order involving a decision is reajudication between the parties even as to

the titles not litigated in the proceedings a conclusion opposed to the fundamental principles of the doctrine of res judicata and to create a species

of an order in rem. If notice was issued to defendants 1 and 2 in the claim proceedings in Singaram Chetty v. Chinnabhi (1920) 40 M.L.J. 7. I

would hold that the case was correctly dicided.

In the result, I agree with the order of my learned brother.