M. Chimpiramma and Another vs Pabbisetti Subramanyam and Others

Subba Rao, C.J.—This is a Letters Patent Appeal against the judgment of Panchapagesa- Sastri J. dismissing the appeal filed against the judgment of the learned Subordinate Judge of Bapatla confirming, that of the District Munsiff of Ongole in a suit for declaration and injunction, or in the alternative for possession.

The 1st Defendant obtained a decree against the 2nd Defendant in Small Cause Suit No. 617 of 1936 on the file of the District Munsiff''s Court, Ongole. In execution of that decree, the plaint schedule property was attached and brought to sale. Before the sale, the 3rd Defendant preferred a claim petition E. A. No. 787 of 1941 setting up title to the same. Though the judgment-debtor was made a party to the application, no notice was taken to him. Arguments in the claim petition were heard on 21-7-1941 but orders were pronounced, only on 25th July, 1941 allowing the claim.

On 21-7-1941, notwithstanding the pendency of the claim petition, the auction sale was held and the 1st Plaintiff purchased the property. On 19-8-1941, the 3rd Defendant filed an application u/s 151 Code of Civil Procedure, praying that the sale may be cancelled but that was dismissed by the learned District Munsiff on the ground that it was not maintainable under Order 21, Rules 89 to 91, Code of Civil Procedure. Again, on 8-1-1942, the 3rd Defendant filed Anr. petition requesting the Court not to confirm the sale but that was also dismissed on 26-1-1942.

After the auction purchaser had taken delivery of possession, the 3rd Defendant filed Anr. application under Order 21, Rule 100, Code of Civil Procedure, praying that the Court should not record the delivery said to have been effected or that it should direct re-delivery of the property to the 3rd Defendant if the property was found to have been delivered to the auction purchaser. That Petition was dismissed on the ground, that, on the allegations in the petition, it was not maintainable. Thereafter, on 25-1943 the lst Plaintiff and his lessee the 2nd plain tin filed the aforesaid suit for declaration of the 1st Plaintiff''s title and for an injunction against the 3rd Defendant and Ors.

The Courts below hold that the order on the claim petition would not debar the 1st Plaintiff from setting up his title based'' on the Court sale as the Judgment-debtor was not a party to the claim. This conclusion was arrived at on the ground that the auction purchaser was only the representative of the judgment debtor and'' that When the judgment-debtor himself, not being a party to the claim order was not bound by it, his representative also could not equally be bound by it.

There is a long catena of cases holding that a judgment-debtor, who was not a party to the claim proceedings, is not bound, by the order made therein. But, a Division Bench of the Madras High Court in Velu padavachi v. Arumugam Filial, 38 Mad LJ 397: (AIR 1920 Mad 191 (2)) (A), held, that under similar circumstances, the auction-purchaser was bound by the claim order though the judgment-debtor was not a party to the proceedings. The reason for the decision was expressed at page 401 (of Mad LJ): (At p. 193 of AIR) as follows:

But ordinarily, it is the decree-holder''s right to bring the property to sale against the claim of the claimant''s right to have the property released (or sold, subject to the claimant and the claim) which are litigated in such a petition. The auction purchaser is entitled to take advantage of the order against the claimant in such a tease (if it is not set aside by a suit within one year) not because the purchaser is the representative of the decree-holder but because the order which established the right of the decree-holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the Legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction purchaser at the sale held in pursuance of the order against the claimant. The conclusive establishment of the decree-holder''s right to bring the property to sale free from the claimant''s alleged encumbrance involves the right of the purchaser at the sale to get a title to the property free from such encumbrance.

The present case is a converse one. While in the aforesaid decision the claim was diismissed, in the instant case, the claim was allowed. That cannot make any difference principle for, if the claimant was bound by the claim order when it went against him, he could equally take advantage'' of it when it was in his favour. It was argued by the learned Counsel for the Respondents that this decision was wrong and not supported by any known principles of law, giving conclusive effect to decisions made between parties. It was also contended that a judgment-debtor was a necessary party to the claim proceedings and that an order made behind his back could not bind the judgment-debtor or his representatives. As this question arises often, it is necessary to have the authoritative decision of Pull Bench. "We, therefore, refer the following question to the Full Bench:

Whether an order made in an application under Order 21 Rule 58 to which the judgment-debtor was not made a party or to whom notice was not given, would bind the auction purchaser in a Court sale held in execution of a money decree.

OPINION OF THE FULL BENCH

Subba Rao, C.J.

The following question has been referred to the Full Bench:

Whether an order made in an application under Order 21, Rule 58, to which the judgment-debtor was not made a party or to whom notice was not given, would bind the auction purchaser in a Court sale held in execution of a money decree.

The facts relevant to the question may be briefly narrated. The 1st Defendant obtained a decree against the 2nd Defendant in Small Cause Suit No. (517 of 1956 on the file of the District Munsiffs Court, Ongoie. In execution of that decree, the plaint scheduled properties were attached and were being brought to sale. The 3rd Defendant filed a claim petition E. A. No, 787 of 1941 in July 1,941 on the ground that he purchased the same from the 2nd Defendant under a sale deed dated 11-10-1936, Though the Judgment-debtor was made a party to the application and notice was ordered, no notice was served on him.

But notice was given to the decree-holder. The petition was heard on 21-7-1941 and orders were pronounced on 25-7-1941 allowing the claim. But, meanwhile, the auction sale was held on 2lst day of July, and the'' 1st Plaintiff purchased the property. The sale was confirmed and the auction purchaser obtained delivery of the lands on 22-2-1942. The auction purchaser and the lessee under him filed O. S. No. 515 of 1943 in the District Munsiff''s Court, Ongoie for a declaration that the 1st Plaintiff was the owner of the property purchased by him in Court auction and for an injunction restraining the 3rd Defendant and persons claiming under him from causing any kind of obstruction to their possession and enjoyment.

In the alternative, there was a prayer for a decree for possession and manse profits. It was alleged in the plaint that the, 3rd Defendant, who claimed to be a purchaser of the properties from the 2nd Defendant, was hot a real purchaser who paid any consideration and that the sale was a sham and collusive one. The contesting Defendant viz: the 3rd Defendant, pleaded that his was a genuine purchase and that the claim order in his favour not having been set aside within one year had become final and conclusive. The learned District Munsiff, and on appeal the learned Subordinate Judge, held that the sale was a nominal and collusive transaction.

They rejected the plea that the claim order had become final as there was no suit within one year to set aside the same. On those findings, the suit was decreed. On second appeal, Panchar pagesa Sastri J, agreed with the lower Courts both on the question of fact as well as of law and dismissed the appeal. The 3rd Defendant''s legal representative preferred the Letters Patent Appeal against the judgment of Panchapagesa Sastri J.

Sri Manavala Chowdari, the learned Counsel for the Appellants contends that in a claim proceeding, the judgment-debtor is not a necessary party, that only the decree-holder''s right to bring the property to sale is decided therein and the purchaser in execution of the decree gets only such property in respect of which the said: right of the decree-holder is established. He would further contend that the purchaser in execution of a money decree in some respects, claims under the decree-holder, and therefore, he is bound by the order ON a claim petition between the decree-holder and the claimant.

The reply of the learned Counsel for the Respondent may be stated thus. A purchaser in execution of a money decree claims under the judgment-debtor, and as the judgment-debtor in the present case was not given notice in the claim proceedings, the order allowing the claim of the 3rd Defendant behind his back was not binding either on the judgment-debtor or on the auction purchaser claiming under him. It would only bind the decree-holder and the claimant, the 3rd Defendant, who were parties to the order.

To appreciate the contentions, it would be useful at the outset to scrutinize the relevant provisions of the Code of Civil Procedure. Order XXI, Rule 58:

Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such, attachment, the Court shall proceed to investigate the claim or objection

Rule 59:

The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.

Rule 60:

Where upon the said investigation the Court is'' satisfied that for the reason stated in the claim or objection such property was not, when attached. in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him or that being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as- his own property, but on account of or in trust for some other person or partly on his own account and partly on account of some other person the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.

Rule 61:

Where the Court is satisfied that the property was at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust. for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim.

Rule 63:

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.

These provisions were enacted to secure a speedy settlement of the question of title raised at execution sales. If a claim" is preferred to the attachment of any property, the Court in a summary way decides whether the claimant has an interest in the property as would make the possession of the judgment-debtor not on his own account but on account of or in trust for the claimant or that he is in possession for himself.

If the Court comes to a conclusion in favour of the claimant on either of the aforesaid two points, the claim is allowed. On the other hand, if it ''holds that the judgment-debtor is in possession in his own right, the claim is dismissed. The said order is conclusive unless the party against whom it is made filed a suit within the time prescribed by Article 11 of the Limitation Act viz: one year from the date of the order. This procedure is only optional and if a person claiming interest in the property attached chooses to intervene, the parties to the claim order would be bound by it subject to the result of a suit.

These simple provisions of the CPC enacted to secure a speedy settlement of the questions arising in execution were subject to judicial scrutiny giving rise to conflict of decisions in regard to their field of operation. The conflict related not only to the subject-matter of the dispute but also to the parties to it. The ear-list decision is that of the Full Bench of the Madras High Court in NETIETOM PERENGARY-PROM V. TAYANBARRY PARAMESWAREN NA-MBUDRY, 4 Mad H. C. R. 472 (FB) (Al). There, the Defendant''s claim to the attached property u/s 246 of the Code of CPC (Act VIII of 1859) was allowed on 17-9-1863.

The suit was instituted on 21.9-1864. The Courts below held that the suit was barred by the provisions of Section 246 which laid down that "the party against whom the order may be given shall be at liberty to bring a suit to establish his right at any time within one year from the date of the-order". It was argued that the order was not against the judgment-debtor and therefore the suit by him was not governed by the one year period of limitation. The Full Bench held that the suit was barred by limitation.

Scotland C. J. observed at P. 475:

The order in favour of the claim was undoubtedly against the interests of the Plaintiff, for it was a decision against the very right which he had brought this suit to establish; and I think that as the original Defendant and judgment-debtor in the suit, he became a party .to the investigation of the claim under the section.

As Innes J., differed from him, the matter was referred to a Full Bench. The majority of the Full Bench agreed with the view of Scotland C. J. Innes J. who differed expressed the contrary view thus at P. 477:

The determination of the right in the attached property of the judgment-debtor and the claimant who in this proceeding occupy the position of the 1st and 2nd Defendants respectively was merely incidental to the substantial object of the proceeding, the determination of the question of whether the execution should proceed or the claim be allowed.

This judgment is, therefore, a clear authority for the proposition that the judgment-debtor is as much bound by the claim order as the claimant or the decree-holder. But it is said that there was a specific provision in Act VIII of 1859 compelling service of notice on the judgment-debtor and therefore tails decision is no longer good law. But the subsequent decisions of the Madras High Court bearing in mind perhaps the aforesaid fact have laid down a rule which is slightly different from that of the Full Bench.

Another divisional Bench of the Madras High Court in Gurubva v. Subbarayudu ILR 13 Mad 366 (B) followed the Full Bench decision and gave its effect thus at page 368:

That decision, though doubted in ARAKEI KUNHI KUTTIYALI v. IMBICHI AMMAH, 8 Mad HCR 416 (C) and dissented from by the High Courts of Calcutta and Bombay in KEDAR NATH V. RAKHAL DAS, ILR 15 Cal. 674 (D) and SHIV-APPA V. DOD NAGAYYA, ILR 11 Bom. 114 (K) has never baen overruled and is still binding on this Court; but it really amounts to no more than this, that a judgment-debtor may be the party against whom an order upon a claim in execution proceedings is made so as to be bound by the special rule of limitation prescribed for suits by such a party:

The learned Judges proceeded to observe:

It is, we think, for the person who sets up the special bar of limitation against the judgment debtor to show that he was a party to the execution proceedings and that the order was an order against his interest.

Much to the same effect is the decision of Anr. Divisional Bench of the Madras High Court in Muthuswama Mudaly v. Ayyalu Bathadu 13 Mad LJ 367 (F) wherein the- learned Judges observed at P. 368:

The Judgment-debtor may be the party against whom an order upon a claim in execution proceedings is made so as to be bound thereby. Whether he is such a party or not must depend upon the facts of each case, i. e., the circumstances in which the order is made and the terms of the order itself. "The same view was expressed when the question was raised under the present Code in Appanna V. Appanna, 1 Mad LW 772: (AIR 1915 Mad 463) (G). When it was contended that a judgment-debtor was not interested in claim proceedings, the learned Judges observed at p 774: (of Mad LW): (at p. 463 of AIR)."It has not, however, been explained how a Judgment-debtor is not as directly interested in making a particular portion of his property available for the payment of his debt as the decree-holder is in securing payment from that portion Authority in this Presidency being in favour of that right.

Ramesam and Venkatasubbarao JJ. in Kumara Goundan Vs. Thevaraya Reddi and Others, (ID reviewed the law on the subject. There, the question was whether a Claimant, whose claim was rejected but the attachment in respect whereof the claim was made was raised, would be precluded from setting up his title In a suit field by the purchaser in execution of the decree. The learned Judges held that the claimant was not bound to institute a suit under order XXI Rule 63, CPC Code, to set aside the claim order and was not precluded from raising the question of title in a suit brought against him. In that context, the learned Judges visualised the various situations that would arise on the basis of an order on a claim petition. At p. 619, (of Mad LJ): (at p 1114 of AIR) Ramesam J. observed:

I will first observe that the effect of an order on a claim petition may be different according as the judgment-debtor is or is not a party to the inquiry. It was pointed out in Moidin Kutti v. Kunhi Kutti All ILR 25 Mad 721 (I) that the judgment debtor may not be a party to the inquiry on the claim petition and in such case the order though in favour of the claimant and opposed to the judgment-debtor''s rights need not be conclusive against the judgment-debtor if no suit is filed by him within one year to set it aside. Conversely, if adverse to the claimant and in favour of the judgment-debtor it need not be set aside by the claimant to the full extent it may sound in favour of the judgment-debtor and has to be set aside only so far as the order is in favour of the decree-holder concerned. If the judgment-debtor is a party, then the order on the claim petition decides not only questions between the claimant and the decree-holder, but also questions between the claimant and the judgment-debtor the latter being in genie al much broader in scope than the former.

To put it in other words: as soon as a claim petition is filed, there are three possible parties to the enquiry - the claimant, the decree-holder, and the judgment-debtor and we may have two classes of cases:- (1) Cases in which all three are parties. In such a case an order against the claimant will be wider in scope and has effects reaching much farther than in the second class. (2) Cases in which the claimant and the decree-holder are the only parties. In this case, the order is narrower in scope and Its'' consequences are not so far-reaching as in class (1).

Dealing with a case where the decree-holder and the claimant only were parties, the learned Judge observed that the effect of the dismissal of the claim petition was simply to hold that the decree-holder had got a. right to pursue the attachment and the claimant had not got a right to object to the attachment. This judgment also accepted the view all along held by the Madras High Court and restated it in clear terms. Venkatara. manarao and Somayya JJ. in Swarupchand Rayanji and Others Vs. Majeti Janakiramayya and Others, (J) expressed the following view at p. 320 of Mad LJ): (at p. 331 Of AIR) as settled law on the subject. They observed:

Whether a judgment-debtor is a party to an order on a claim petition so that he could be ren. dered bound thereby is a question of fact in each case.

It is true that other High Courts had taken a different view, but in view, of the even course of the decisions in the Madras High Court, no useful purpose would be served by noticing all of them. It will suffice if the judgment in ILR 15 Cal. 674 (D) is referred to, to illustrate the opposite view. At page 679, Beverley J. observed:

When a claim lis preferred to property which has been attached as the property of the judgment-debtor, the contest is really between the decree-holder who asserts that the property is liable to attachment, and the claimant who alleges that it is not in the actual or constructive possession of the judgment-debtor, and therefore not liable to attachment. And the order made in such a case is either that the property be released from attachment as not being in the possession of the Judgment-debtor (Section 280) or that the claim be disallowed, the property being found liable to attachment (Section 281).

In a sense the order in either case may be said to be against the judgment-debtor; in the one etas it declares that the property Is not in his possession; in the other it declares that it Is liable to attachment and sale. But in neither case does it affect his right or title to the property, and in point of fact it is an order to which he need be no party, as it may be made behind his back.

The learned Judges also referred to 4 Mad H C R 472 (FB) (Al) and pointed out that that de was not correctly decided and was not followed by other Courts.

The scope of the decision on a claim order has been correctly stated in cases where the judgment-debtor is not made a party. But where the judgment-debtor is made a party, I would prefer the Madras view and hold that the order against the judgment-debtor cannot be questioned unless he gets it vacated within the1 time prescribed. It may therefore be taken as settled law, and also consistent ''with practice, that a judgment-debtor need not be made a party to claim proceedings in which case, the Court decides only the right of the decree-holder to bring the property to sale against the claim of the claimant''s right to have the property released. Such an order would not obviously bar the judgment-debtor who was not a party to the proceedings. It is equally settled that a judgment-debtor can also be made a party to such a proceeding, and in that event it would be binding on him and preclude him from setting up his claim unless he gets the said order set aside in a suit filed under Order XXI Rule 63 Code of Civil Procedure, within the time prescribed. Subject to the operation of the doctrine of Res Judicata, an order on a claim petition filed under Order XXI Rule 58 of the Code of Civil Procedure, or a decree in a suit filed under Rule 63 of that order, does not extend beyond the execution of the decree which has given rise to these proceedings. See Kandadai Narasimhachariar Vs. Raghava Padayachi, . So far, the legal position is clear.

The more difficult question is what would be the effect of that order on a purchaser of the property in execution of the decree (1) when the judgment-debtor is not a party to the claim order and (2) when the judgment-debtor is a party. If the judgment-debtor is a party to such an order, the purchaser would certainly be bound by it, for; it is settled law that a purchaser in execution of a money decree is a representative of the judgment-debtor. See Thondam Annamalai Mudali Vs. Tiruttani Ramasami Mudali and Others, . The principle of Caveat Emptor applies and he would get the right, title and interest of the judgment-debtor.

If the judgment-debtor is not a party to the order on a claim petition but only the decree-holder and the claimant are parties, prima facie the auction purchaser would not be bound by that order unless he is the representative of one of the parties to the dispute. Obviously he is not claiming under the claimant. Can it toe said that he is claiming under the decree-holder or is the representative of the decree-holder? In Gnanambal v. Parvati ILR 15 Mad 477 (M), it was held that the attachment by a decree-holder is not effected by him as the privy or representative of the judgment-debtors, but by virtue of a right inherent in him to attach what was really their property at the date of the attachment.

But it is said by the learned Counsel that though the purchaser does not represent the decree-holder, as the decision between the decree-holder and the claimant desides the decree holder''s right to bring the property to sale, to that extent the purchaser is bound by it. In support of this contention reliance is placed on two decisions of the Madras High Court, one in Ramu Iyer v. Palaniappa Chetty ILR 35 Mad 35 (N), and the other in 38 Mad LJ 397: (AIR 1920 Mad 191 (2)) (A). In the former case, in execution of a money decree, the property of the judgment-debtor was attached.

A mortgagee of the same property put in a claim petition to which the mortgagor i.e" flu judgment-debtor was not made a party. The claim was upheld. The "decree-holders themselves became the purchasers at the Court sale. Subsequently they assigned their rights to a third party. The mortgage gee filed a suit to enforce his mortgage by the sale of the mortgage properties. The purchaser from the decree-holders sought to impeach the validity of the mortgage. One of the contentions raised was that neither the purchaser nor the decree-holder could question the validity of the mortgage as they did not file a suit within one year from the order on the claim proceedings.

It was held that the contesting Defendants could not impeach the mortgage as they did not file a suit within the prescribed time. From the aforesaid facts, it will be seen that though the judgment-debtor was not a party to the claim proceedings, the purchasers in court auction were the decree-holders themselves who were parties to the claim proceedings. As they were parties to the claim proceedings, they were certainly bound by the order on the claim petition. The subsequent purchaser from them could not be, In a better position than his vendors.

This case, therefore, is no authority for the position that a stranger auction purchaser in execution of the money decree, though the judgment, debtor was not a party to the claim proceedings, would be bound toy the order made therein. In the latter case, in execution of simple money decree properties of the judgment-debtor, which had been use fractural mortgaged to a third party were attached and sold and purchased by Anr. . Before the sale, the mortgagee applied to have the properties sold subject to the mortgage and asked the Court to have it so stated in the sale proclamation, but his application was dismissed as being too late.

More than a year thereafter, the mortgagee filed a suit against the purchaser for the recovery of possession of the properties on the strength of the mortgage. The learned Judges held that the suit was barred under Article11 of the Limitation Act. Spencer J., based his judgment on the simple ground that the mortgagee being a party to the claim order, it was binding on him as he did not file the suit within the prescribed time under Article 11 of the Limitation Act. Sadasiva Aiyar J., though he agreed with Spencer J" in his conclusion, made the following observations on which strong reliance is placed by the learned Counsel for the Appellants:

On the other hand, it has been held in several cases that the Judgment-debtor is not a necessary party to claim proceedings and that the proper parties to such proceedings are the decree holder and the claimant. Of course, if the judgment-debtor intervenes and actively opposes the claim along with the decree-holder and the claim petition succeeds, he may be bound by the order unless he sets it aside within one year as the order may be then said to be passed against him also.

But ordinarily, it is the decree-holder''s right to bring the property to sale against the claim of the claimant''s right to have the property released (or sold subject to the claimant and the claim) which are litigated in such a petition. The auction-purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside be a suit within one year) not because the purchaser is the representative of the decree-holder tout because the order which established the right of the decree-holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction-purchaser at the sale held in pursuance of the order against the claimant. The conclusive establishment of the decree-holder''s right to bring the property to Sale free from the claimant''s alleged encumbrance involves the right of the purchaser at the sale to get a title to the property free from such encumbrance.

I do not see how the conclusiveness of the decision between the decree-holder and the claimant binds a party who is not claiming under either of them. That decision removes the obstruction of the claimant subject to his filing a suit under Order XXI Rule 63 Code of Civil Procedure, and enables the Court to bring the right, title and interest of the judgment-debtor in the property to sale. On the other hand, if it should be held that the purchaser is bound by the order on the claim petition, though he was not a party or privy (to party) to it, we would toe enlarging the scope of the doctrine of Res Judicata beyond the limits permitted by law.

The incongruity of that position would become clearer in a converse case. Suppose the claim was allowed and the property was purchased in Court auction by a third party and the purchase money was paid to the decree-holder. The decree-holder would not be bound to refund the money as the right, title and interest of the judgment-debtor passed to the purchaser and therefore it could not be said that there was complete failure of consideration. The claimant would be entitled to recover the property as the order in the claim proceedings was binding the auction purchaser.

The purchaser would not be entitled to file a suit to set aside the claim order as ho was not a party to the claim order. These unjust consequences would flow if we were to hold that the purchaser is bound by an order to which he is not a party. We would also be cutting into the well-settled doctrine of Caveat Emptor viz., that the purchaser in a Court sale acquires the right, title and interest of the judgment debtor. As the Judgment-debtor was not a party to the claim order, in law, his interest would pass to the purchaser and by holding that the order to which the purchaser was not a party was binding on him, we would he taking away the title from a person who was claiming under the judgment-debtor.

All these complications and unjust consequences can be avoided if the well-settled principles are adhered to without stretching them to meet a hard case. The fundamental principle is that an order binds only the parties to that order or the persons claiming under them. If the Judgment-debtor is made a party to the claim proceedings, the order therein will bind the auction-purchaser as he claims only under the judgment-debtor. If he is not made a party, the order is an order of limited scope confined to the right of the decree-holder to bring the property to sale, as against the claim of the judgment-debtor to the property.

If the claim is dismissed it becomes conclusive ''against the claimant not because of any principles of: Res Judicata, but because of the express provisions of the, Code of Civil Procedure. Under Order XXI Rule.63 Code of Civil Procedure, where a claim or an objection is preferred, the order against the party to the proceeding becomes conclusive unless the statutory suit is filed within the time prescribed. The order,, therefore, against the claimant is conclusive in regard to the execution ,pf the decree which has given rise to the claim proceedings.

On the other hand, if the claim is allowed and the claimant chooses not to make the judgment, debtor a party, the order cannot be an order against the judgment-debitor, and therefore, in, the terms of Order XXI Rule 63, it is not conclusive against him, and therefore, not conclusive on persons claiming under him In that event, the purchaser gets the right, title and interest of the judgment-debtor. The aforesaid legal position ordinarily will not cause any prejudice to any of the parties.

If the claim is dismissed the claimant can get that order, if wrong, set aside in a properly constituted suit. If the claim is allowed, the property will not be sold. If the claim petition is filed, the Court will stay the sale till the petition is disposed of. The situation created in the present case, namely, the claim petition being allowed after a sale is held, rarely arises except by some oversight or negligence of the claimant.

13a. For the aforesaid reasons, I would answer the question in the negative.

Bhimasankaram, J.

14.I agree.

Satyanarayanaraju, J.

I agree.

By Court Subba Rao, C.J. and Viswanaths Sastry, J.

Following the answer given to the question referred to the Pull Bench, this appeal is dismissed with costs.