Sarju Prasad Singh vs A. James and Others

Reuben, J.—This is a petition in revision filed by a claimant against an order rejecting his claim under Order 21, Rule 58, Civil P.C. The decree under execution is a mortgage decree for sale and the claim has been rejected by the learned Munsif on the ground that by the decree under execution the specific property now in question is directed to be sold and so it is beyond the jurisdiction of an executing Court to go behind that decree and to investigate under Order 21, Rule 58, Civil P.C., whether the property is liable to sale in execution of the decree. This is, therefore the only point for determination. In coming to his conclusion the learned Munsif has followed Deefholts v. Peters (1987) 14 Cal. 631 and Mahabir Prashad Singh Vs. Nogendra Nath Mandal, . He might have added to this a ruling of this Court in Ragho Pahan v. Mt. Lachan Koer AIR 1919 Pat. 131. These cases are cases under Order 21, Rule 58 as it originally stood and under the corresponding section, Section 278 C. P.C., 1882. Order 21, Rule 58 as it originally stood was in the following terms:

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.

The rule next following was:

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 then provides that, where upon the said investigation the Court is satisfied that the property was not, "when attached," in the possession of the judgment-debtor etc., the Court shall make an order releasing the property, wholly or partially "from attachment." It was clear from this that the proceeding under Order 21, Rule 58 was intended to apply only to property attached in execution. This was the ratio decidendi of the three cases above mentioned. The learned Munsif has, however, relied on a passage in Deefholts v. Peters (1987) 14 Cal. 631 which has been cited with approval in Mahabir Prashad Singh Vs. Nogendra Nath Mandal,

We think that proceedings by way of claim are not applicable to a case of this kind. Proceedings by way of claim are applicable only in cases of money decrees where property of the judgment-debtor has been attached; that is, where some property of the judgment-debtor is attached for the purpose of satisfying any general money claim. In that kind of claim it is clear that there should be some speedy remedy for the purpose of ascertaining whether the property claimed is the property of the judgment-debtor at all; but in a case like this where the property has been dealt with in a solemn way by the decree of the Court, and has been declared liable to sale under the mortgage, that remedy would not be applicable.

This passage illustrates what I have said above, namely that the ratio decidendi is the absence of attachment in a proceeding for the execution of a mortgage decree for sale. The other remarks are merely speculation as to the reason for which this procedure has not been considered suitable for a mortgage execution. Order 21, Rule 58 as modified by this High Court is now as follows:

When any claim is preferred to any property, the subject-matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall '' proceed to investigate the claim or objection.

The Rule 59 now is:

The claimant or objector must adduce evidence to show that at the date of the decree or of the attachment, as the case may be, he had some interest in, or was possessed of, the property in question.

Rule 60 as now modified provides that, where upon the said investigation the Court is satisfied that such property was not "at the date of the decree, or when attached, as the case may be," in the possession of the judgment-debtor etc., the Court shall make an order releasing the property, wholly or in part. The modifications made in these three rules are clear and consistent and there can be no doubt that the object was to bring within the scope of proceedings under Order 21, Rule 58 not merely property attached in execution of the decree but also all property which is the subject-matter of the execution proceedings. Here the property in respect of which the claim was filed is admittedly the subject-matter of the execution proceedings. Hence, in my opinion, a proceeding under Order 21, Rule 58 was competent.

Mr. Mahabir Prasad for the opposite party has objected that the petitioner''s vendors in the present case were actually impleaded as defendants in the mortgage suit and were expunged therefrom on the ground that they raised a question of paramount title. He contends that it is not possible by rule to empower the executing Court to investigate a question which the trial Court was not competent to investigate. I do not think that the effect of the modifications of Order 21, Rules 58 to 60 is to give the executing Court any new power. My reason is that the power of investigation now given under Order 21, Rule 58 is one which the executing Court already possessed under the provisions of Order 21, Rule 100. The advantage of the new procedure is that the enquiry comes at an earlier instead of at a later stage. On the above grounds I would allow this petition with costs. The order of the learned Munsif is set aside and the case is remanded to him for disposal according to law. Hearing fee two gold mohurs.

Manohar Lall J.

I agree and wish to make one observation. Mr. Mahabir Prasad contended strongly that the amended rule should not be interpreted to conflict with the well-known doctrine that a paramount title cannot be drawn into controversy in a mortgage action. He says that if a paramount title cannot be and was not drawn in controversy in the suit itself how can it be allowed to be drawn in controversy in a claim case in the execution proceedings of the decree passed in that suit? The answer to this contention is that as has been pointed out by their Lordships of the Judicial Committee the decree passed in a suit in which paramount title is allowed to be drawn into controversy is not illegal; it is merely irregular as it may lead to confusion at the trial.

Again it is well settled that by consent of parties a paramount title can be drawn into controversy as has been allowed to be done in a number of cases. But where the holder of the paramount title object to such a course this has not been allowed to be done. Here, however, the Legislature intends by the amendment that the paramount title must be decided if it is raised in a claim case under Order 21, Rule 58. I do not see any hardship in the matter at all as it is desirable that the final rights of the parties to sell the mortgaged properties so as to pass full title to the auction purchaser should be decided in presence of the real parties concerned as early as possible.

It may be that if a paramount title is sought to be drawn into controversy in mortgage suits the trial Courts would allow it to be done, and the mere fact that the trial Court in this case expunged the vendors of the petitioner from the mortgage suit--in view of the law which then prevailed under the old Order 21, Rule 58--is no ground for refusing this question to be decided in these proceedings.