P.S.S. Somasundaram Chettiar and Another vs C.T. Senthilnathan and Others

M. Anantanarayan, O.C.J.

(1) The main ground upon which we are now disposing of this original side appeal can be very simply stated. In E. P. No. 24 of 1960 in O. S. 6 of

1952-53 of the District Court, Shimoga, there was an application (No. 1918 of 1962) before Srinivasan J. on the Original Side under Order XXI

Rule 58, C.P.C. for raising the attachment of certain properties, which was effected in execution of the decree. This application was preferred by

one C. T. Senthilnathan, the claimant.

(2) naturally enough, the learned Judge (Srinivasan J.) addressed himself to the main question whether the claimant was holding the properly under

the judgment-debtor, or for the benefit of another person, or whether he was holding it in his own bona fide right. The learned Judge was satisfied

that the title prima facie and possession were with the applicant, in his own right and on his own account. The learned Judge, therefore, concluded

that this property could not be validly attached and sold as the property of the judgment-debtors, liable to be proceeded against in execution of the

decree. The learned Judge allowed the application and raised the attachment. The decree-holder has preferred this appeal from that judgment,

under Cl. 15 of the Letters Patent.

(3) Even apart from the merits, Sri Kesava Aiyangar for the claimant-respondent 1 advanced the argument that such an appeal could not be

allowed. According to him it is not even maintainable. But he was content to press the argument in that form that, in any event, Order XXI Rule 63

C.P.C. could not be negated in this fashion, by the decree-holder. That rule specifically lays it down that if the claim or objection is allowed, the

party against whom such an order is made (decree-holder) has to institute a suit to establish the right which he claims to the property, ""subject to

the result of such a suit, if any, the order shall be conclusive"", and the Legislature is explicit on this point. The argument, therefore, was that we

should not merely because of Clause 15 of the Letters Patent, proceed into the merits of the controversy, and differ from the learned Judge

(Srinivasan J.) upon any conceivably different view of the facts. The affected party (decree-holder) has to be referred to the only remedy available

to him in law, which is a remedy by way of suit.

(4) It must be immediately stated that in certain early decisions of this Court, the matter has come up for discussion, and that a view has been

expressed, no doubt with considerable hesitancy, which does not seem to be in accord with the subsequent explicit views of the Judicial

Committed and of the Supreme Court. It is sufficient for the purpose to refer to C.V. Venugopal Mudali Vs. C. Venkatasubbiah Chetty and

Others, , which noticed certain earlier decision of this Court also. The question arose in a different form in that case, because an appeal was

actually entertained against the order on a claim petition passed by a single Judge of the High Court, and the Bench confirmed that order; one

argument advanced was that such a confirming judgment was without jurisdiction, in view of the explicit language of Order XXI Rule 63 C.P.C.

The learned Judges were exercised to come to a conclusion whether the general principle was that enunciated in Order XXI Rule 63 C. P. C and

the specific provision of an exception was Cl. 15 of the Letters Patent or whether a reverse view should be taken. After noticing the prior

authorities, such as Sabhapathi Chetti v. Narayanswami Chetti, (1901) 11 MLJ 346 and Ravi Veearaghavulu v. Venkatanarasimha Naidu, 23 Ind

Cas 305: AIR 1914 PC 87, Sadasive Aiyar J. expressed the view of the Division Bench, with considerable hesitancy, that he thought that there

was no warrant for interference with a longstanding practice, which was to allow such appeals, under the Letter Patent, or to reopen the question,

when earlier decisions appeared to have sustained the point of view that such appeals could be maintained, notwithstanding the explicit terms of

Order XXI Rule 63 C.P.C. There the matter was permitted to rest, as far this catena of decisions was concerned.

(5) But subsequently, the same principle came up for discussions, though in the context of other provisions of law, as part of the area of decision of

the Privy Council judgment in AIR 1931 149 (Privy Council) . The Judicial Committed explicitly stated that, where there was such a provision for

finality of decision specifically enacted by statue, it was intended to exclude any further appeal, and hence that it would prevail over some general

provision as to appeals, similar to that embodied in Clause 15 of the Letters Patent; the provision itself was not Clause 15 of the Letters Patent, but

a distinct one.

(6) Again, in the Supreme Court decision in South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, , their Lordships has occasion to

consider the same situation and principle, with reference to other facts. At page 1443 of the text there are explicit data to the effect that if a specific

enactment makes an order of a single Judge conclusive and final, the appeal provided by the Letters Parent will not prevail over such a bar; it is

only if there is no such bar that the appeal lies under Letter Patent--Vide the observations in paragraphs 11 and 13 of the text, at pages 1446 and

1447 of the report.

(7) In this view, therefore, we have no hesitation in coming to the conclusion that the earlier view expressed by the Division Bench of this Court,

that we have referred to, and certain still earlier decisions noted in the judgment, may no longer be sustainable, or liable to be regarded as

expressing the correct position in law. However, it is not necessary for us to proceed further in this direction, for the simple reason that we do not

now have before us the situation of the canvassing of the legality or otherwise, of a judgment given by a Division Bench, in appeal from a judgment

of a single Judge, which itself allowed or dismissed a claim under Order XXI Rule 58, C.P.C. read with Rule 63 C.P.C. It is sufficient for us to

note that, in this appeal, it is always open to us to dismiss the appeal by referring the appellant to his true remedy at law, and the exclusive remedy

provided by the statue namely, the remedy by way of a separate suit. Accordingly, we refer the appellant to this remedy and dismiss the appeal.

(8) There would appear to be, no doubt, some difficulty about limitation, since the statue permits only one year from the date of the order, for the

institution of a suit. But that would depend on the further question whether the appellant could successfully claim that he has been bona fide

pursuing another remedy in a Court, upon a misconception of his rights or of the processual law. Subject to satisfying the appropriate Court on this

question of limitation, the appellant is referred to his remedy by way of a separate suit.

(9) This appeal is dismissed. The parties will bear their own costs.

(10) Appeal dismissed.