Premsukh Das and Others vs Satyanarain Singh and Others

Chatterji, J.

This appeal which arises out of a suit under Order21, Rule 63, Civil P. C, is by the defendants first party. The subject-matter in dispute is four annas share in a holding of 72.37 acres which admittedly belonged to four persons Bansi, Lakshmi, Khe-yali and Ganga in equal shares. The plaintiffs claim to have purchased the entire interest of these four in the holding on 10th May 1935 at a certificate'' sale for arrears of rent of the holding. Previous to this, however, the 12 annas interest of Bansi, Kheyali and Ganga had been purchased from them by Sureswar Singh and some others under private sale. In 1936 these purchasers Sureswar and others brought a suit (Title suit No. 10 of 1936) against the plaintiffs, also impleading as defendants the present defendants-second party, who are heirs of Lakshmi, deceased, for possession of their purchased 12 annas share on a declaration that the plaintiffs acquired no title to the same under the certificate sale, being farzidars of the certificate-debtors. This suit was decreed on 12th August 1939, but on appeal to the High Court, the parties entered into a compromise.

In the meantime in November 1935, the defendants first party obtained a money decree for Rs. 7751 against the defendants second party, the heirs of Lakshmi who was then dead. In 1937 the defendants first party took out execution of this decree against the defendants second party and attached their four annas share, now in dispute, in the aforesaid holding. The plaintiffs preferred a claim under Order 21, Rule 58, Civil P. C, which was allowed on 17th January 1938. The defendants first party then allowed their execution case to be dismissed for default. Subsequently, in 1939, they started a fresh execution in which they again attached the disputed four annas share. The plaintiffs again preferred a claim under Order 21, Rule 58, but it was dismissed for default on 2nd March 1940 when plaintiff 1 Satyanarayan Singh, who is the father of the remaining two plaintiffs who are minors, was in jail. The disputed property was sold on 6th March 1940. The plaintiffs then instituted the present suit under Order 21, Rule 63 on 15th May 1940. They base their title to the disputed four annas share on the certificate sale of 10th May 1935. The suit was contested by the defendants first party, substantially on the groundsthat the purchase at the certificate sale was a benami purchase made by the defendants second party in the name of the plaintiffs who are their close relations; and, therefore, the plaintiffs did not acquire any title under that purchase, and that the decision in the title Suit No. 10 of 1936, in which it was held that the plaintiffs were farzidars of the certificate-debtors, operates as res judicata.

The learned Munsif who tried the suit held that the decision in Title Suit No. 10 of 1936 does not operate as res judicata, but he upheld the defendants'' contention that the plaintiffs were mere farzidars of the defendants second party and did not, therefore, acquire any title to the disputed property under the certificate sale. He, however, held that the defendants first party not having filed any suit under Order 21, Rule 63 to set aside the order dated 17th January 1938 allowing the plaintiffs'' claim under Order 21, Rule 58, that order became conclusive between the parties with the result that the defendants were debarred from challenging the plaintiffs title to the: disputed property. In this, view the Munsif decreed the suit.

The defendants first party preferred an appeal from the decree passed... by the Munsif, while the plaintiffs filed a cross-objection challenging his finding that they did not acquire any title to the disputed property under the certificate sale. In the cross objeetion the plaintiffs also claimed costs of the suit which the Munsif had disallowed, The learned Subordinate Judge who heard the appeal affirmed all the findings of the learned Munsif, But he held that on the finding that the plaintiffs have got no title to the disputed pronerty, the learned Munsif should not have decreed the whole suit in full including the relief for declaration of the plaintiffs'' title to the disputed property, but should have decreed the suit in part, in so far as it relates to the declaration that the disputed property is not liable to be attached and sold in exeeutioriof the decree obtained by the defendants-lst party against the defendants-2nd party, and that the attachment and sale of the disputed property in Execution case No. 94 of 1939 are illegal and invalid. The Subordinate Judge accordingly allowed the appeal in part and modified the decree of the trial Court to tbisoextent, and he dismissed the cross-objection; Hefse this appeal by the defendants-lst party. The plaintiffs also have filed a cross-objection challenging the decree of the lower appellate Court, in so far as it disallowed their relief for declaration of their title to the disputed property.

The main contention raised by Mr. P.B. Das on behalf of the appellants is that on the finding that the plaintiffs have got no title to the disputed property, the Courts below should have dismissed their suit altogether. But if by reason of the provisions of Order 21, Rule 63 the defendants 1st party are debarred from challenging the plaintiffs'' title to the disputed pro-perty, as held by the Courts below, it is quite plain that it was not open to the Courts below to go into the question whether in fact the plaintiff''s have got any title. The question, therefore, turns on the true effect of Order 21, Rule 63 which reads as follows:

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.

Mr. Das contends that the extent to which the order is conclusive, where it is an order allowing a claim under Rule 58, must be determined with reference to the provisions of Rule 60. That rule shows that the only question on which the Court is to be satisfied before it can make an order releasing the property from attachment is whether for the reason stated in the claim the property was not, when attached, in the possession of the judgment-debtor. It is therefore said that the only question determined by the order is the question of possession at the date of the attachment, and consequently the order is conclusive only as regards possession at that date, but not as regards title. This contention is sought to be supported by certain observations of Rankin J. (as he then was) in Najimunnessa Bibi Vs. Nacharaddin Sardar, . That was a case in which a claim under Rule 58 was dismissed for default, but very soon afterwards, the execution proceeding in which that claim was preferred was itself dismissed for default with the consequence that the attachment ceased. In a subsequent execution proceeding in respect of the same decree, the same property was again attached and was sold. The claimant then brought a suit against the decree-holder, who became the purchaser, for confirmation of her possession and for injunction. This suit was brought considerably more than one year after the dismissal of her claim for default. The question for conside-ration before the High Court was whether the suit was barred by Article 11 of Schedule 1, Limitation Act. Rankin and Page JJ. held that the suit was not barred, as Article 11 had no application, The principle on which that decision proceeded wasstated by Rankin J., as follows:

The principle is that the object of making a claim in execution is to remove the attachment, (sic) when the attachment is withdrawn, that object is gained, and that, if there exists no attachment or proceeding in execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order.

Rankin J., at p-557 said:

Rules 60 and 61 provide then for a summary investigation into possession as distinct from a thorough trial of ultimate right.

Again at pp. 557-558 his Lordship said:

Having tested the matter by the limited test provided by these rules, the execution Court is required to make an order. What then is the order it is required to make ? By Rule 60, the Court ''shall make an order releasing the property, wholly or to such an extent as it thinks fit, from attachment.... Now, that is the order which by Rule 63 is made conclusive subject to a suit.

Then at p. 559 his Lordship said:

But if the attachment is removed and later on another attachment is made, the question of possession is a question of possession at a different date.

It is on these observations of his Lordship that Mr. Das relies. But these observations cannot be taken out of the context. The whole object of the elaborate discussion in his Lordship''s judgment was to demonstrate that an unsuccessful claimant is not required to bring a suit under Order 21, Rule 63, if within one year from the date of the order disallowing his claim, the attachment against which he had preferred the claim ceases to exist by reason of the dismissal of the execution case for default. His Lordship himself recognised that the position would be different in the case where the claim is allowed and the suit under Order 21, Rule 63, is to be brought by the decree-holder. At p. 561 his Lordship, after laying down the above quoted principle, observed:

It is no answer at all to say that a decree-holder''s suit under Rule 63 has always to be brought after the attachment is removed.

It is, therefore, clear that his Lordship''s observations relied upon by Mr. Das can be of no real assistance in the present case. The same distinction was also pointed out by a Full Bench of the Allahabad High Court in the case in Habib Ullah and Another Vs. Mahmood and Others . The facts of that case were similar to those of the aforesaid Calcutta case: 51 Cal. 548 The Full Bench held that if the attachment ceases to exist within the period of one year from the dismissal of the claim, it is no longer incumbent upon the claimant to file a suit for a declaration of title to the property in order to avoid the conclusiveness of the order in the claim case. Sulai-man C. J., who delivered the leading judgment, said:

It is possible to hold that there is a distinction between the position of a claimant and a decree-holder inasmuch as the position of a olaimant is improved if the. attachment ceases after the order is passed, whereas the position of the decree-holder is in no way altered merely because the application for execution is dismissed. In that view he must sue even if his attachment is gone.

Mukerji J. who delivered a separate judgment agreeing with Sulaknan C. J. observed:

On the other hand, the decree-holder would not he relieved from the necessity of instituting his suit, if the claimant has succeeded in the execution department. This would be the result even if the decree-holder''s application for execution is dismissed for default with the result that the attachment is withdrawn.

It is argued by Mr. Das that if, as held in the above cases, a claimant is not required to bring a suit under Order 21, Rule 63, where the attachment is withdrawn within one year from the dismissal of the claim, there is no reason why the decree-holder will be required to bring such suit, when such distinction is not warranted by the plain language of Order 21, Rule 63. But as pointed out by Sulaiman C. J. in the above Full Bench case, all the Pligh Courts have consistently held in a long course of decisions that Order 21, Rule 63 creates no bar against the claimant, if the attachment is withdrawn within one year from the dismissal of his claim, and it is too late to go back on this long course of decisions. There is one obvious reason why the principle of these de-cisions should not be extended to a decree-holder''s suit. If this principle were to be so extended, the result would be startling. An unsuccessful decree-holder has only to have his execution case dismissed for non-prosecution, and then to start a fresh execution and take out fresh attachment so that he may again contest the same claim which had already been decided against him in his previous execution case. He will thus be able to circumvent the express provision of Order 21, Rule 63. This he cannot be permitted to do.

As the defendants first party did not bring any suit under Order 21, Rule 63 within one year from the date of the order allowing the plaintiffs'' claim under Order21, Rule 58 in the previous execution case of 1937, that order became conclusive as between them and the plaintiffs. Now what is the effect of that order? The defendants first party attached the disputed property as being the property of their judg-ment-debtors, defendants second party. The plaintiffs preferred a claim on the ground that the disputed property belonged to them by virtue of their purchase at the certificate sale and was in their possession and was therefore not liable to attachment. The practical effect of the order allowing the plaintiffs'' claim was that the disputed property was the property of the plaintiffs and not of the defendants second party and was therefore not liable to be attached by the defendants first party as property of the defendants second party. And when the order became conclusive, it was no longer open to the defendants first party to assert that the disputed property was the property not of the plaintiffs but of the defendants second party. As between the plaintiffs and the defendants first party therefore the property must now be taken to be property of the plaintiffs.

There is nothing in Order 21, Rule 63 to warrant the contention of Mr. Das that the order made under Rule 60 releasing the property from attachment or, in other words, allowing the claim under Rule 58 will be conclusive under Rule 63 only as regards possession at the date of the attachment. It is true that the ground'' on which the order can be made under Rule 60 allowing the claim is that the attached property was not, when attached, in the possession of the judgment-debtor. But as observed by Rankin J. in the very Calcutta case 51 cal. 5481 relied upon by Mr. Das: "It is impossible to separate altogether the question of possession and of title." It is noticeable that Rule 60 itself uses the words "for the reason stated in the claim" which suggest that the question of possession must be determined with reference to the nature of the claim preferred. In the present case, the Court, when it allowed the plaintiffs'' claim and released the property from attachment in the execution case of 1987, must have been satisfied that at the date of the attachment the plaintiffs were in posses, sion of the attached property in their own right as purchasers at the certificate sale. If the defendants first party wanted to challenge the order releasing the property from attachment, it was incumbent upon them to bring a suit under Order 21, Rule 63 "to establish the right" which they, claimed to the property. The right which they claimed was the right to attach the property as being their Judg-ment-debtors'' property. In order to establish this right, it would be necessary for them to disprove the right in assertion of which the plaintiffs successfully preferred their claiir-under Rule 58. It would not be enough merely to show that the judgment-debtors and not the plaintiffs were in possession at the date of the attachment. In a suit under Order 21, Rule 63 the material question for determination is the question of title. The defendants first party, having failed to bring a suit under Order 21, Rule 63, cannot be in a better position than if they had brought such suit and failed therein to establish the right they claimed. The effect of their failure to bring a suit under Order 21, Rule 63 is ihat the Order releasing the disputed property from attachment is conclusive and it is no longer open to them to assert the right which they claimed or to challenge the plaintiffs'' right. It cannot possibly be held that the order is conclusive only as regards possession at the date of the attachment.

It is next contended by Mr. Das that having regard to the decision in the title Suit No. 10 of 1936 brought by Sureswar Singh'' and Ors. against the plaintiffs and the defendants second party in which it was held that the plaintiffs were farzidara of the defendants 2nd party in respect of the purchase at the certificate sale, the previous order allowing the plaintiffs'' claim in the execution case of 1987 can no longer be said to be conclusive. It is, however, frankly conceded by Mr. Das that the decision in the title Suit No. 10 of 1936, in which the defendants 1st party were no party and the plaintiffs and defendants 2nd party were co-defendants and in which the four annas share now in suit was not in dispute, cannot operate as res judicata. Consequently the decision in that suit can in no way affect the conclusiveness of the order allowing the plaintiffs'' claimrin the execution case of 1937.

Lastly it is contended by Mr. Das that the plaintiffs, in spite of the previous order in their favour allowing their claim in the execution case of 1937, chose to prefer a fresh claim in the execution case of 1939, and this claim having bear rejected, they must take the consequences. But it is to get rid of the order rejecting their claim that they brought the present suit under Order 21, Rule 63. Undoubtedly in this suit under Order 21, Rule 63, it is incumbent upon the plaintiffs to establish the right which they claim to the property in dispute. The right which they really claim is that the defendants 1st party had no right to attach and sell the property in the execution case of 1939. Admittedly the attachment in the execution case of 1939 was made when by lapse of one year the order allowing the plaintiffs'' claim in the previous execution case of 1937 had already become conclusive under Rule 63. The effect of that order being conclusive, as I have already shown, is that the defendants 1st party are precluded from asserting that they had the right to attach and sell the property. Consequently the right which the plaintiffs really claim in this suit is clearly established. This right being established, the plaintiffs are certainly entitled to a decree, as passed by the lower appellate Court. Mr. Das refers to the cases in Kaura v. Ram Chand AIR 1925 Lah. 385 and Nawal Kishore v. Khiyali Ram AIR 1929 Lah. 865 in which it was held that

If a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well.

In the present case, the plaintiffs, being unsuccessful in the second claim case, did bring the suit under Order 21, Rule 63. All the contentions raised by the appellants fail. I would accordingly dismiss the appeal with costs. The coross-objeccion has not been pressed and is, therefore, dismissed but without costs.

Fazl Ali, C.J.

I agree.