Sunder Debi @ Radha Debi vs Damodar Shukul and Others

Beevor, J.—This an application in revision against an order passed by Babu Mahabir Prasad, Subordinate Judge of Muzaffarpur on 24th September 1942 allowing an application under Order 21 Rule 100, Civil P.C. It is contended that the applicant opposite party had no right to present an application under Order 21, Rule 100, Civil P.C., by reason of previous steps and orders taken and passed in the same execution case. The material facts are as follows. The present petitioner obtained a money decree against the sons of Bhola Mahto, and in execution of that decree brought certain property to sale and purchased it herself and subsequently took delivery of possession on 22nd February 1942. During the execution proceedings, Damodar Shukul, opposite party No. l, filed two petitions on 17th September 1941 and 18th September 1941 asking that two encumbrances on different portions of property sold should be notified in the sale proclamation. These petitions were rejected by an order dated 27th October 1941. It is contended on behalf of the petitioner that after the rejection of those petitions the remedy of Damodar Shukul lay by way of suit under Order 21, Rule 63, Civil P.C., and therefore he was not entitled to apply under Order 21, Rule 100, Civil P.C., after delivery of possession had been granted to the petitioner.

This application in revision came first before Rowland J., who considered that a substantial point of law was raised which should be heard by a larger Bench and, in his order dated 5th November 1943, he pointed out that the facts of this case are practically on all fours with those in Sunder Prasad Singh v. Deodhari Singh AIR 24 1937 Pat.63 in which case it was held following Biswanath Patra v. Lingaraj Patra AIR 1922 Pat. 408 that a mortgagee in possession is not entitled to object under Rule 58 of Order 21 and that an objection by him made and disallowed does not debar him from again applying under Rule 100. He further pointed oat that since the decision of that case, the terms of Rule 58 of Order 21 have been amended in exercise of the rule-making powers of this High Court and Rule 58 now applies to any claim to any property on the ground that the applicant has an interest therein which is not bound under the decree. He also referred to a certain decision to show that the fact that the claim was not fully investigated would hardly seem to be a governing factor. Before dealing with points of law which arise, I must refer to certain facts. The two petitions filed in the execution proceedings before sale by Damodar Shukul were not headed as being petitions under Order 21, Rule 58.

In one of them no particular order or rule of the CPC was cited and in the other reference was made to Order 21, Rule 66, Civil P.C. I do not, however, think that this will affect the decision of this case if the relief claimed in those petitions by Damodar Shukul was a relief which could be granted under Order 21, Rule 58, Civil P.C. No evidence was taken regarding the allegations made in those petitions but it appears that the pleaders of the parties were heard and in the order dated 27th October 1941 by which those petitions were rejected the Court remarked as follows:

The decree under execution is a money decree. If the applicant''s mortgage bond is genuine it will not be affected by the sale in execution of money decree.

Since the Full Bench decision on this Court in Sunder Prasad Singh Vs. Deodhari Singh and Others, . Order 21, Rule 58 (1) has been amended in exercise of the rule-making powers of this High Court and now reads 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 found under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.

The decision of the Full Bench that Order 21, Rule 58, Civil P.C., is inapplicable to circumstances such as those in present case is no longer valid. Now that Order 21, Rule 58 has been amended so as to enlarge its scope and according to the terms of the amended Rule 58 I think it is quite clear that Damodar Shukul who claimed mortgage interests in different portions of the property which formed the subject-matter of the execution proceedings had a right to apply under Order 21, Rule 58, Civil P.C. His petitions were not decided on the merits in the sense of a definite decision by the Court regarding the existance or validity of the interests claimed by him. At the same time it may be noted that the portion of the order dated 27th October 1941 which has been quoted by me above shows that the Court did decide that any mortgage interest actually held by Damodar Shukul would be unaffected by the sale and to this extent it may be said to be a decision on the merits.

The decisions cited by Rowland J., to the effect that the failure to investigate the claim fully would not be a governing factor in the present case are Rasananda Rath v. Ratha Sahu. AIR 1935 Pat. 122 , Nogendra Lal Chowdhury Vs. Fani Bhusan Das, , Venkataratnam v. Ranganayakamma. AIR 1919 Mad. 738, Trimbak Tumbdu v. Ziparu Chaturdas AIR 1933 Bom. 190 and Sardhari Lal v. Ambika Pershad.(1988) 15 Cal. 521 (P.C.). The last mentioned decision is decision of the Privy Council and the other decisions form part of a line of authority resting on it. In the Privy Council case their Lordships of the Judicial Committee were considering a case under the CPC of 1877 and the same principles apply to the Code of 1908. In that case an order was passed in execution proceedings u/s 280 of the Code of 1877, the effect of which was to allow certain objections that have been launched to an attachment and to release such property from attachment. It was not clear how far investigation had been made before that order was passed, and their Lordships stated that they do not desire to pronounce any opinion as to the extent of the investigation which is required under the Code. They held however that in any case the order was made and was an order within the jurisdiction of the Court that made it. It was not a conclusive order but a suit might be brought to claim the property notwithstanding the order but the law of limitation says that the plaintiff must be prompt in bringing his suit. In that case it is quite clear that in the subsequent suit the plaintiff could not obtain relief without substantially obtaining a reversal of the order which had been passed u/s 280, Civil P. C.

The decision of the Calcutta High Court in Nogendra Lal Chowdhury Vs. Fani Bhusan Das, was a case in which the claimant preferred a claim to the property under Order 21, Rule 58, Civil P.C. His application was dismissed for default on the ground of delay. He then brought a suit for declaration of title to the property in question, for ejectment of one Manindra and for withdrawal of the attachment. Here he clearly alleged that the property was not liable to attachment and the rejection of his application under Order 21, Rule 58 had the effect of continuing the attachment and again in this case the unsuccessful claimant of the case under Order 21, Rule 58 could not succeed in his subsequent suit without in effect reversing the order passed under Order 21, Rule 58, Civil P.C.

The case of the Madras High Court in Venkataratnam v. Ranganayakamma AIR 1919 Mad. 733 was a Full Bench decision. From the first few sentences of the order of reference made by Sadashiva Ayyar, J., (at the top of p. 990) it is clear that in that case the claimant alleged that the judgment-debtor had no saleable interest whatever in the land. The comment made by me on the Calcutta decision applies therefore to this case also. In the case reported in Trimbak Tumbdu v. Ziparu Chaturdas AIR 1933 Bom. 190 the claimant in the case under Order 21, Rule 58 claimed to have purchased the attached property from the judgment-debtor and again same comment applies to that case. The case of this Court reported in Rasananda Rath v. Ratha Sahu AIR 1935 Pat. 122 was again a case in which the claimant claimed as purchaser from the judgment-debtor in respect of the attached property and again the same comment applies. Certain further decisions have been cited before us. The first of these is a decision of the Calcutta High Court, Ambica Prosad Sanyal Vs. Soorajmull Nagarmull Firm and Another, . Therein it was held that the question whether there is a mortgage on attached property, can be raised in two different ways in execution proceedings. First, when the Court prepares the proclamation of sale under Order 21, Rule 66 and it was pointed out that at this stage apparently the Court cannot decide the question as to whether the mortgage is a valid and a subsisting mortgage and the information given in the sale proclamation constitutes a warning to the purchaser who purchased the property subject to all risks which this notice involves. This does not preclude him from questioning the validity of the mortgage in any subsequent suit or proceeding. The second way of raising this question of the mortgage is by way of an application under the claim sections contained under Order 21, Civil P.C. After referring to Order 21, Rule 62 in this connection Mukherjea J. continued:

The order contemplated by this rule clearly indicates that this is a judicial determination, though in a summary way of the question as to whether there is a valid mortgage or charge existing upon the attached property and when the Court passes an order directing the continuance of the attachment subject to such charge what is put up to sale is nothing more than the equity of redemption which the judgment-debtor has got in the attached property. The decree-holder or the purchaser cannot in such cases dispute the mortgage unless he brings a suit to set aside the summary order under Order 21, Rule 63, Civil P.C. The question is whether the same principle applies when the Court does not pass an order directing the continuance of attachment subject to a mortgage but the mortgagee''s application to have such a direction is dismissed or refused.

After discussing this question Mukherjea J. stated:

But the mortgagee is not obliged to prefer any claim at all and I concur with the observations made by the Lahore High Court that if he chooses to take advantage of the summary procedure he may suffer the disadvantage as well.

He then rejected the contention that as the dismissal of the claim matter was for non-prosecution and there was no investigation of the claim on its merits the necessity for instituting a suit under Order 21, Rule 63, Civil P.C., did not arise. He then considered the question whether the application made by the claimant in that case was under Order 21, Rule 58, or under Order 21, Rule 62, Civil P.C., and came to the conclusion that it was really a claim petition made under Order 21, Rule 62, Civil P.C. This case, of course had no reference to Order 21, Rule 58 as amended by this High Court. The other case cited before us is the decision of this Court in Mt. Anrajo Kuer v. Ramdeyal Singh AIR 1942 Pat. 406. Therein it was held that it is open to a usufructuary mortgagee to apply under Order 21, Rule 58, Civil P.C., 1908 (as it stood before this amendment in 1937) for the removal of an attachment of the mortgaged property under execution of the money decree against the mortgagor, if it appears that the intention of the decree-holder was to attach the property itself and not only the equity of redemption, and to go behind the mortgage. It was further held that the decree-holder having challenged the mortgage in the claim case and having invited a decision on the merits was estopped from taking the opposite position and asserting that the mortgagee''s suit under Order 21, Rule 63 was not maintainable. This decision again had no reference to Order 21, Rule 58 as no w amended by this Court and it did not deal with any claim case dismissed for default. I consider that the present case can clearly be decided by reference to the wording of Order 21, Rule 68, Civil P.C., which runs 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.

No doubt the reported decisions show that the last five words of this rule apply not merely to what is expressly stated in the order but also to what it necessarily implied therein. There is however no reason for reading Order 21, Rule 63 in such a way as to make the order in the claim case conclusive on any point which was neither expressly nor by implication decided in such order. Clearly in the present case the order passed on 27th October 1941, neither expressly nor by implication decided anything as to the existence or validity of the mortgages claimed by Damodar Shukul. Order 21, Rule 63, Civil P.C., therefore raises no bar against his raising such questions in any subsequent proceedings. I hold, therefore, that the application made by him under Order 21, Rule 100, Civil P.C., was legally maintainable. This petition must therefore be dismissed with cost to the applicant respondents. Hearing foe two gold mohurs.

Manohar Lall J.

I agree.