Mt. Bas Kuar vs Gaya Municipality and Others

Fazl Ali, J.—This second appeal arises out of a suit brought by the Municipal commissioners of Gaya Municipality under Order 21, Rule 63, Civil P.C., in the following circumstances: The plaintiffs having obtained a money decree against defendant 5 on 23rd April 1932 proceeded to attach in execution of their decree a house in Gaya which according to them belonged to the judgment-debtor. Thereupon defendants 1 to 4 (sons of one Bullak Ram) preferred a claim under Order 21, Rule 58, alleging that the house in question had been purchased by their father from defendant 5 for a sum of Rs. 1000. This claim was allowed on 20th November 1933 and the house was released from attachment. On 11th September 1934 defendants 1 to 4 executed a conveyance in respect of the house in favour of defendant 6 for a sum of Rs. 1500. Thereafter on 6th October 1934 the plaintiffs brought the present suit for a declaration that the deed set up by defendants 1 to 4 was a

fraudulent one executed by defendant 5 in the name of a near relative without any consideration and as such it was illegal and defendants 1 to 4 did not derive any title thereunder.

Defendant 6 was made a party to the suit on 15th May 1935. The trial Court dismissed the suit but it was decreed by the District Judge of Gaya who has held that the conveyance executed by defendant 5 in favour of the father of defendants 1 to 4 as well as that executed by defendants 1 to 4 in favour of defendant 6 were without consideration and never intended to pass any title and they did not confer any title upon the transferees. In this appeal, which has been preferred by defendant 6, the findings of fact arrived at by the learned District Judge have not been questioned but his decree is attacked on three grounds. The first ground, which is the only serious ground, is that the suit is barred by limitation against defendant 6 who was made a party to the suit more than a year after the decision of the case under Order 21, Rule 58, Civil P.C.

The appellant''s contention is undoubtedly supported by the decision of the Calcutta High Court in Protap Chandra Gope and Others Vs. Sarat Chandra Gangopadhya, but with great respect to the learned Judges who decided that case I am not prepared to accept their view on the question of limitation. It has been held in a number of cases that a suit brought under Order 21, Rule 63 is a mere continuation of the proceedings in a claim petition. Belying on this principle, the Madras High Court has held in that a purchaser of property from a claimant after an order has been passed in his (claimant''s) favour but before a suit under Order 21, Rule 63 was instituted, is an alienee pendente lite and is therefore not a necessary party to the suit; and if the necessary parties had been brought on the record within one year, the alienee could not advance the plea of limitation as Section 22(2), Limitation Act, expressly (excludes the operation of Clause (1) in such cases.

With this view I am inclined to agree because it can also be supported by a reference to Section 64, Civil P.C., as will appear from the following head-note of the decision of the Calcutta High Court already quoted:

The order for release from attachment does not put an end to the attachment so as to leave the claimant free to deal with the property as he likes. If a suit is brought by the decree-holder to establish his right to attach the property and a decree is passed in his favour, the effect of the decree is to set aside the order of release and to maintain uninterrupted the attachment originally made. Therefore in such a case any private transfer of the property by the claimant though made after an order under Rule 60 releasing the property from attachment, would be void u/s 64, Civil Procedure Code.

Now if the transfer is void u/s 64, it is liable to be ignored by the plaintiff and the person in whose favour the transfer is made is not a necessary party to the suit under Order 21, Rule 63. But so far as the present case goes the matter does not rest there. The learned District Judge has found that in fact there was no transfer either in favour of defendants 1 to 4 or in favour of defendant 6 and they did not derive any title under the deeds of transfer relied on by them respectively. If there was no real transfer and defendant 6 was not a transferee in the proper sense of the term, she was also not a necessary party. It has been pointed out in a number of cases that as limitation merely bars the remedy by a suit, the only parties in a suit between whom a question of limitation can possibly arise are those who seek relief and those against whom it is necessary to seek relief: see Mohamed Ishaq v. Akramul Haq (1907) 6 Cri.L.J. 558. Therefore when a party is brought on the record out of time, the question of limitation does not arise when there is no relief claimed against that party. In the present case it was not necessary for the plaintiff to claim any relief against defendant 6 and in fact no relief has been claimed against her. The question of limitation therefore does not arise and cannot affect the decree passed by the Court below.

The next question raised on behalf of the appellant was that the suit instituted by the plaintiff-respondent was essentially a suit u/s 53, T.P. Act, and inasmuch as the plaintiffs did not sue in a representative capacity on behalf of all the creditors, their suit is not properly framed and therefore not maintainable. Now it has been held by the Rangoon High Court in at least two cases that a creditor whose attachment has been raised at the instance of a claimant under Order 21, Rule 58 and who avails himself of the right given by Order 21, Rule 63 can sue on his own behalf alone for having the alienation in favour of the claimant declared void without mentioning any other creditors or their debts: see Maung Tun Thein v. Maung Sin A.I.R (1934) Ran 332 and U Maung Nge v. P.L.S.P. Chettiar Firm AIR (1934) Ran 200. The necessity for the plaintiff to bring a suit under Order 21, Rule 63 arises by reason of a summary decision under Order 21, Rule 58 passed in execution of his own decree and there is no reason why he should be compelled to sue on behalf of other creditors also. But even if it is held that it was incumbent on him to do so, the point cannot arise in this case, because there is nothing on the record to show that defendant 5 had any other creditors excepting the plaintiffs. In my opinion therefore the second objection also must fail.

The last objection is that the plaintiffs are estopped from challenging the appellant''s title in this suit because her name and the names of her vendors have been mutated in the Municipal registers and the plaintiffs have accepted taxes from them.

In order however that estoppel may arise, it must be shown that the person against whom estoppel is set up has intentionally caused or permitted any person to believe anything to be true which is not true and to act upon such belief. In the present case it is not alleged in the pleading or evidence that the plaintiffs caused the defendants to believe something to be true which is not true and they acted upon such belief. On the other hand on the findings arrived at by the learned District Judge the defendants must be held to have been fully aware of the fact that defendant 5 had never parted with his title in the house which is the subject-matter of the present suit.

There can therefore be no estoppel in the present case. As no other points were urged in this appeal we must uphold the decision of the learned Judge and dismiss this appeal with costs.

Agarwala J.

I agree.