Patna High Court
Thakur Prasad Sah vs Shedeni Sah And Ors. on 2 April, 1958
Equivalent citations: AIR1958PAT534, 1958(6)BLJR338, AIR 1958 PATNA 534
Author: V. Ramaswami
Bench: V. Ramaswami
ORDER
1. All these applications are directed against the order of the first Subordinate Judge of Chapra, dated 13-3-1954, in Miscellaneous cases Nos. 35 and 38 to 43 of 1953, holding that the execution case brought by the decree-holder opposite party should be dismissed on the ground that it is barred by limitation.
2. The petitioner in all these cases obtained a decree on 27-5-1939, from the court of the Additional Subordinate Judge of Dibrugarh in the State of Assam. An appeal was taken to the Calcutta High Court from that decree, and on 1-4-1942, the Calcutta High Court dismissed the appeal. There was an application made for a review of the judgment, but the review application was dismissed by the Calcutta High Court on 1-5-1942. The first execution case was taken out by the decree-holder in Execution Case No. 8 of 1945, filed on 9-4-1945.
There were subsequently other execution cases filed, but in the present cases we are concerned with the execution case filed on 22-4-1953. The judgment debtor objected that the execution case was barred, but the objection was dismissed for default. Thereafter the opposite parties filed claim cases objecting to the execution of the decree with regard to certain properties attached in execution. In dealing with these claim cases the learned Subordinate Judge of Chapra went into the question whether the execution case was barred by limitation and decided that question in favour of the opposite parties who had filed the claim cases under Order 21, Rule 58, Code of Civil Procedure. The learned Subordinate Judge did not go into the question of the merits of the claims put forward by the opposite parties but vacated the attachment order on the ground that the execution case itself was barred by time and it should be dismissed.
3. The argument addressed on behalf of the petitioner in these cases is that the learned Subordinate Judge has committed an error of jurisdiction in going into the question of limitation in dealing with the applications filed under Order 21, Rule 58, Code of Civil Procedure. Counsel for tile petitioner relied upon the language of Rule 58, which is in the following terms :
"'58. (1) 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 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.
(2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering sale may postpone it pending the investigation of the claim or objection".
Rule 59 is also important in this connection and it is necessary to quote that rule in full:
"59. 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 is in the following terms:
"60. Where upon the said investigation the Court is satisfied that for the reason stated in the claim of objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being, in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, Or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment".
In our opinion, the argument put forward on behalf of the petitioner is well founded and must prevail. The learned Subordinate Judge had no jurisdiction to enter into the question of limitation in dealing with the claim applications made under Order 21, Rule 58, Code of Civil Procedure. The question of limitation is beyond the scope of the enquiry held under Order 21 Rule 58, Code of Civil Procedure. The only question at issue in these applications is the issue whether the property was or was not at the time of attachment in the possession of the judgment-debtor or of some person in trust for him, or that being in the possession of the judgment-debtor at that time, it was so in his possession, not on his own account or as his own property, but on account of or in trust of some other person. That is the issue to be decided in the claim cases and there is no justification on the part of the learned Subordinate Judge in releasing the attachment merely on the ground that the execution case was barred by limitation. The view that we have taken is supported by a decision of a learned Judge of this Court in Jalaluddin v. Mt. Maniran, AIR 1921 Pat 311 (1) (A), and by a decision of the Calcutta High Court in Mahammad Hashim Ali Khan v. Iffat Ara Hamidi Begum, AIR 1942 Cal 180 at p. 202 (B). Therefore, in our opinion, these applications must be allowed and the cases must go back to the learned Subordinate Judge for deciding the claim cases filed by the opposite parties on their merit, in accordance with the provisions of Order 21, Rule 58, Code of Civil Procedure.
4. We accordingly allow these applications and make the rule absolute. In Civil Revision Applications Nos. 461, 459 and 464 the opposite parties must pay the costs to the petitioner. Hearing fee Rs. 100/-each. Similarly in Civil Revision applications Nos. 457 and 458 the opposite parties must pay Rs. 100/- each to the petitioner. There will be no order as to costs in Civil Revision Applications Nos. 460 and 463, because there is no appearance on behalf of the opposite parties in those cases.