Machi Raju Venkataratnam vs Sri Raja Vadrevu Ranganayakamma Zamindarini Garu and Others

Sir John Wallis Kt., C.J.—The general policy of these provisions of the Code, as explained by the Judicial Committee in Sardhari Lal v. Ambika Pershad ILR (1888) Cal. 521 at p. 525 (P.C.) is to secure the speedy settlement of questions of title raised at execution sales. Section 283 of the Codes of 1877 and 1882 only gave a right of suit to the party against whom an order had been passed under Sections 280, 281 or 282, and did not provide for the case where the Court u/s 278 refused to investigate the claim on the ground that it had been designedly or unnecessarily delayed. In such cases, Section 283 failed to provide for the speedy settlement of the questions of title raised by the claim. The legislature would appear to have intended to supply this omission when in Rule 63 of Order XXI of the present Code it conferred the right of suit in general terms where a claim or an objection is preferred upon the party against whom an order is made, instead of limiting it, as in Section 283, to cases in which an order had been passed under Rules 60, 61 and 62 (Sections 280, 281 and 282 of the old Code). Where a claim or objection is preferred under Rule 58 (formerly Section 278), and the Court rejects it under the proviso to that rule on the ground that it was designedly or unnecessarily delayed, the unsuccessful claimant or objector in my opinion clearly comes within the words "the party against whom the order is made". Rule 63 does not speak of any party but of the party against whom an order has been made, and assumes that, where a claim or objection is preferred under Rule 58 (Section 278) there must always be a party against whom an order is made within the meaning of the rule. I cannot agree with the suggestion in Napier, J.''s Order of Reference that the change in the language of Rule 63 was due merely to the altered scheme of the Code. If no change had been intended} Rule 60, 61 and 62 would simply have been substituted in Rule 63 for Sections 280, 281 and 282 in the corresponding Section 288 of the former Code. We are bound, I think, to give effect to the clear intention of the legislature to widen the scope of the rule in accordance with the general policy of this legislation as explained by the highest tribunal. A claimant, who comes forward too late in the day to entitle him to have his claim investigated having regard to the proviso in Rule 58, none the less raises a question of title with regard to the attached property; and there is nothing unfair in depriving him owing to his laches of the chance of getting a provisional decision in his favour on his claim petition and requiring him to proceed to assert his title by suit within the shorter period of limitation prescribed when questions of title are raised with regard to attached property. I accordingly agree with Narasimha Chetty v. Vijiapala Nainar (1915) 2 L.W. 206 and Ponnusami Pillai Vs. Samu Ammal and Others, . As regards Thithikutti Umma v. Thalathodi Chekkamutti Second Appeal No. 1986 of 1916, the attention of the Court was not called in that case to the alteration in the language of Rule 63 on which my opinion is based. Our answer to the first question is that the case comes within the terms of Order XXI, Rule 63. As regards the second question, assuming Sadasiva Ayyar, J., appears to hold in his Order of Reference, that the Zamindarini''s claim in E.A. No. 3307 of 1910 was not finally rejected by the order passed on it on 23rd December 1910, we think that the subsequent order Exhibit V was an order made against the Zamindarini within the meaning of Rule 63, and was consequently an order covered by Article 11(1) of the Limitation Act of 1908. Though the order only was that the allegations of the Zamindarini would be notified to bidders, we think it amounted, and was understood to amount, to a rejection of the claim on the ground that it was filed too late.

Olfiend, J.

I agree

Seshagiri Ayyar, J.

I entirely agree. The language of Order XXI, 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. Prima facie the decree-holder attaches the property as that of the judgment-debtor. The law compels him to give certain information to the Court before the proceedings in attachment are taken. When this requirement is satisfied unless a third party intervenes the sale would be effected as if the property belonged to the judgment-debtor. When a claim is preferred, the usual prayer is that the attachment should be raised as the property does not belong to the judgment-debtor but belongs to the claimant. On the presentation of such a petition, if the order is not that the property be released from attachment, it must be taken to be an order against the claimant. The practice of notifying claims to intending bidders is not warranted by anything contained in the Code of Civil Procedure. It often leads to the depreciation in value of the property to be sold and is not calculated to advance the right of the claimant in any way. Consequently, it seems to me that the procedure adopted by some of the Subordinate Courts of notifying objection by claimants at the time of the sale without expressing any decision upon those objections, should be discouraged. Although the practice is not a salutary one, I fail to see how this procedure can be construed as not having the force of giving a decision against the claimant. His right to raise the attachment must be deemed to have been negatived when the property was ordered to be sold without releasing it from attachment. Therefore, in my opinion, an order on a claim petition which expresses no final judgment upon the right put forward but simply directs the sale after notifying the claim, is an order against the claimant and he is bound to institute a suit under Article 11 of the Limitation Act. The history of the legislation has been reviewed in the judgment of the learned Chief Justice and I do not propose to deal with that question. I agree to the answers proposed.