Lalita Devi vs Saran Singh and Others

(1) This is a suit under Order 21 Rule 63 of the Code of Civil procedure for declaration to the effect that the property delineated in the plan

annexed to the petition of the plaint belongs to the plaintiff and the defendant No. 2 having no right., title or interest in it, the same is not liable to be

attached and sold in execution of the decree for Rs. 64.12.75 obtained against the said defendant by defendant No 1. The Petition recites that the

site of the building belongs to the defendant No. 2 but the building and the superstructure standing thereon was erected at the expense of the

plaintiff who obtained the necessary permission from the Municipal Committee, Jammu. that the plaintiff mortgaged this building in favour of

Krishan Chand son of Lal Man and that the defendant No. 1 has no right to have the building attached in execution of the said decree obtained by

him against the defendant No. 2. The petitioner of the plaint further goes on to aver that on attachment of the building the plaintiff filed an objection

petition under order 21 Rule 58 of the code of Civil Procedure before the learned District Judge Jamrau praying that the said building be released

from attachment bat his counsel without obtaining instructions from him i. e. the plaintiff made a statement before the court that he did not want to

press the objection petition which was accordingly dismissed on 4th Nov. 1967.

(2) The suit has been resisted by the defendant No. 1 imeralia on the ground that the objection petition having been dismissed as not pressed, the

present suit is not maintainable.

On the pleadings of the parties, a preliminary issue to the following effect was framed :

''Is the suit not maintainable in view of the fact that the objection petition under order 21 rule 58 of the Civil Procedure Code was not pressed by

the counsel before the executing court ? OPD

(3) Mr. D. D. Thakur appearing for the defendant No. 1 has contended that no suit under order 21 rule 63 of the Code of civil procedure can lie

without an objection petition under order 21 rule 5& of the Code of Civil Procedure and in the instant case, the objection petition having been

withdrawn by the plaintiff, without the permission of the court, it is tantamount to the withdrawal of the claim and the present suit is thus barred

under the provisions of order 23 Rule 1 read with section 141 of the Civil Procedure Code Elaborating his submissions he has further submitted

that the objector in the proceedings under 21 rule 58 CPC is placed in the same position as a party to the suit and those objections have got to be

investigated by the executing court and if there is no such investigation on account of withdrawal of the objection petition by the objector the very

basis of the suit under order 21 Rule 63 of the Code of Civil Procedure is knocked out and the same does not lie. He has in support of his

contention relied on a ruling of the Rangoon High Court reported as AIR 1929 Rangoon. 123.

(4) Mr. K. D. Raina appearing on behalf of the plaintiff, has on the other hand contended that even if the objection claim under order 21 rule 58 of

the Civil Procedure Code is dismissed as not pressed that would not operate as a bar to the maintainability of a declaratory suit under the provision

of order 21 rule 63 of the Code of Civil Procedure. He has in this connection placed reliance on a ruling of the Full Bench of the Madras High

Court reported on AIR 1942 Madras, 41. He has further contended the proceedings under order 21 rule 58 of the Code of Civil Procedure is not

a suit and therefore, there can be no question of the applicability of the doctrine of resjudicata. In support of this contention he has invited my

attention to a ruling of the Supreme Court reported in AIR 1967 Supreme Court, 1390.

(5) For a proper appreciation of the rival contentions of the learned counsel for the parties it is necessary to refer to Order 21 Rule 63 CPC which

is in the following terms :

'Where a claim or an objection is preferred, the party against whom an order is made may institute 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.

(6) From a plain reading of the above provision it will be clear that the rule is comprehensive enough to embrace within its ambit an adverse order

made in any circumstance on a petition objecting to the attachment of a property in execution of a decree It does not matter whether there is or is

not an adjudication on merits after investigation.

In Ran Bahadur Singh V. Saligrammand anor, AIR 1931 Oudh. 1 (F. B ) it was held :

''An order passed by the executing court on an objection filed under O. 21 R. 58 which is not pressed subsequently and is therefore dismissed is

an order covered by O. 21 Rule 63.

(7) In Cannanore Bank Ltd v/s Pattarkandy Arayaneettil Madhavi, AIR 1942 Madras, 41 (Full Bench) where the order :

Petition not pressed. It is dismissed.'' was passed which was within Rule 58 but the petitioner did not press the same nor sought permission to

withdraw it without prejudice to his rights it was held to be an order which was against him and required him to file a suit if he wished to reopen the

matter. The following observations made in this ruling ate worth quoting:

Order 21 Rule 63 applies to all orders which are against claims preferred under Rule 63 is whether the order is against the claimant or the decree

holder, but that does not mean that the order must involve an adjudication on the merits after investigation. If the petitioner has in fact asked to be

allowed to withdraw the petition and the court has acquiesced in the course. It may very well be that the order would not be an adverse order

within the meaning of the rule, but it cannot be said that because a claimant says to the court that he does not press the petition and consents to an

order of dismissal, it is not an adverse order...

(8) In Thaher Unnissa Begum, appellant v. Sherfunnissa Begum, respondent A. I. R. 1955 Madras, 446, it was reiterated that the dismissal of a

claim petition under order 21 rule 58 of the code of civil procedure as not pressed without obtaining the permission of the court to withdraw it,

without prejudice to the rights of the petitioner would amount to an adverse order within the meaning of Order 21 Rule 63 and that if such an order

is not set aside by filing a suit within one year as contemplated under Order 21 Rule 63 of the Code of Civil Procedure, it will become conclusive

and the same claim cannot be agitated again.

(9) Again in Peela Yarakayya and another defendants applicants v/s Canumuri Venkata Krishnamareju and others, respondents, A. I. R. 1918

Madras 693, it was held :

An order on a claim petition is conclusive as against a party against whom it is passed under Order 21 Rule 63 Civil P. C. unless it is set aside in a

suit instituted within the time limited by law...

(10) Considering the matter in the light of the aforesaid decisions I am of the opinion that if the order dismissing a claim petition is not got set aside

by filing a suit within one year as contemplated under Order 21 rule 63 it will become conclusive against the claimant and the same claim cannot be

agitated again.

(11) The contention of the learned counsel for the defendants that if there is no investigation of the claim, of the objector under order 21 Rule 58 of

the Civil Procedure Code, the basis of the suit under Order 21 R. 63 C. P. C. is knocked out, is also without substance.

(12) In Gubbala Survanarayan (Minor) and another appellant v. Gadiyapa Ganesulu and another A. I. R. 1954 Madras, 203, (205) it was held :

The test to see whether the order is under Rule 63 or Rule 103 of Order 21 C. P. C. is whether the order is against the claimant and it does not

mean that the order must involve an adjudication on merits after investigation.

In I. L. R. XLV Calcutta, 785, it was held :

Where a claim is preferred under O. XXI r. 58 of the Civil Procedure Code and an order is passed either allowing or rejecting it, the party against

whom the order is made, may irrespective of whether any investigation took place or not, bring a suit in the language of O. XXI r 13.....

In I. L. R. XLI Madras, 935 (Full Bench) it was held :

An order refusing to investigate a claim to attached property on the ground that there was delay in filing it, is an order passed ""against'' the claimant

within order XXI rule 63 civil Procedure Code

In I L. R XLI Allahabad, 623. it was observed :

''Where an objection made to the attachment of property under rule 58, order XXI of the Code of Civil Procedure (1908) is disallowed because

the objector did not appear on the date fixed, the order disallowing the objection is an order 'against' the objector within the meaning of rule 63.

In I. L R. LXIV Calcutta, 713, it was held s

An order rejecting a claim under order XXI rule 58 of the Civil Procedure Code, for default is an order within the meaning of order XXI rule 63

of the Code and subject to the result of a regular suit is conclusive.

Again in Subedar Singh and others v. Ramprit Pandey and ors, A. I. R. 1929 Patna, 116, it was held that :

An order dismissing objections made under order 21 Rule 58 C. P. C. whether it is an order disposing of the case on the merits or whether it is an

order which holds that the objection is not entertainable on the preliminary ground that a certain legal provision is a bar to the maintainability of the

application is adisposal of the application under order 21, Rule 58 after hearing the parties and therefore is an order contemplated by order 21

Rule 63 of the Code of Civil Procedure.

The following observations made in Chet Singh v. Anjuman Imdad Bahmi Qar A. I. R. 1949 East Panjab, 318 are also worth quoting :

The question whether an order is against a claimant or not does not depend on whether the court has investigated the claim or not. It really

depends upon the effect of the matter and if in substance and in effect it negatives the claim and refuses to recognize the property to be sold the

order is an order falling under order 21 R 63.

(13) Ruling reported in A. I. R. 129 Rangoon, 123, cited by the learned counsel for the defendant is clearly distinguishable. In that case no notice

was issued to the decreeholder in regard to the objector's claim petition under order 21 R. 58 C. P. C. and the decree holder himself failed to

appear to our sue the execution matter which was dismissed and attachment withdrawn.

(14) The words shall become conclusive occurring in order 21 Rule 63 C. P C. appear to mean that unless the suit is brought as provided in that

rule, the party against whom the order is made cannot assert either as plaintiff or as defendant in any other suit or as a party to any proceeding that

the order dismissing the claim petition as withdrawn does not amount to a denial of his right and it does not matter that the claim as originally put

was investigated or not.

(15) For the foregoing reasons. I am clearly of the opinion that there is no merit in the contentions of the learned counsel for the defendants. The

preliminary issue framed vide order dated 22111968 is, therefore, decided against the defendants.

(16) Let the suit be now put up for framing further issues on the 3rd January, 1969. Meanwhile the learned counsel for the parties shall file

documents on which they rely in support of their respective pleas.