Patna High Court
Dulhin Ramkishun Kuer vs Mst. Alakh Kuer And Ors. on 25 July, 1962
Equivalent citations: AIR1963PAT225, AIR 1963 PATNA 225, 1962 BLJR 898 ILR 42 PAT 505, ILR 42 PAT 505
JUDGMENT Ramratna Singh, J.
1. This appeal by the plaintiff arises out of a suit under Order 21, Rule 63 of the Code of Civil Procedure for declaration that the lands described in Schedule 1 to the plaint "are not to be attached and sold" in execution of a decree obtained by defendant No. 1 against defendant No. 2, in Title Suit No. 114 of 1946 of the first Court of the Subordinate Judge at Gaya in Execution Case No. 98 of 1951 of that Court. This decree was in respect of maintenance, past and future, payable to defendant No. 1; and the decretal dues were charged on a zamindari property including certain bakasht lands of which the suit lands formed part. In execution of the decree against defendant No. 2, the suit lands were attached and the plaintiff made a claim under Order 21, Rule 58 of the Civil Procedure Code. The claim was based on the allegation that defendant No. 2 had settled the suit lands with defendant No. 3 on nakdi rent in 1948; and defendant No. 3 had, in his turn, sold the same as an occupancy raiyat to the plaintiff on the 8th October, 1952. The claim was disallowed by the executing Court on the 14th July, 1953, which is alleged to be the cause of action for the suit which was Instituted on the 5th October, 1953. But the execution case was dismissed on the 11th November, 1953 on full satisfaction, as the decretal dues were paid in cash and there was no occasion for putting the attached property to sale. A preliminary objection was, therefore, taken by defendant No. 1 to the effect that the suit was not maintainable, inasmuch as the attachment ceased to exist after the dismissal of the execution case. At an earlier stage defendant No. 1 had come up to this Court in civil revision and this Court had observed that this preliminary issue should be decided first; and the learned Subordinate Judge of Gaya decided the issue against the plaintiff. Hence, this appeal.
2. The only point, therefore, for consideration is whether the suit is maintainable in view of the dismissal of the execution case on the 11th November, 1953. Under Order 21, Rule 58 of the Code, the executing Court is required (a investigate into any claim to, or any objection to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to attachment. If the property is found to be in possession of the claimant on his own account, then under Rule 60, the claim will be allowed and the property will be released from attachment. But, under Rule 61, the claim is to be disallowed, if the Court is satisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him. A speedy remedy against the order under Rules 60 and 61 is provided in Rule 63, which reads thus:
"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 the claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive."
A suit under this rule must be instituted within a period of one year from the date of the order allowing or disallowing the claim (see, Article 11 of the Limitation Act). It appears to be well settled that, if the attachment comes to an end, as where the decree is satisfied or set aside or reversed or the decretal amount is paid into Court, or it the attachment is voluntarily withdrawn by the decree-holder or the attachment is raised owing to the default of the decree-holder, the parties are put back in the same position as they were in before the attachment and the defeated claimant is not required to institute a suit within a year from the date of the order disallowing the claim. The reason is that, when the attachment is raised, the cause of action for the claim or any suit under this rule by the defeated claimant falls to the ground. In support of this principle, it is enough to refer to the decision in Najimunnessa Bibi v. Nacharaddin Sardar, AIR 1924 Cal 744, Habib Ullah v. Mahmood, AIR 1934 All 267 and Ramchandra Singh v. Mt. Khodaijatul Kubra, AIR 1945 Pat 369. The position is, however, different where a claim is allowed and a suit is brought by the decree-holder for setting aside the order releasing the property from attachment. In such a case, notwithstanding the termination of the attachment, the decree-holder is not relieved from the necessity of instituting a suit wider this rule. In support of this principle, it would be sufficient to refer to the decision in Premsukh Das v. Satyanarain Singh, AIR 1945 Pat 485. Thus, in view of the aforesaid principles, which were not disputed at the bar, the present suit by the defeated claimant is not maintainable under Order 21, Rule 63 of the Code of Civil Procedure. But Sri Kaushal Kishore Sinha appearing for the appellant contended that in as much as the attachment was raised after the institution of the present suit, it is maintainable as one for declaration of the plaintiff's title to the property in suit. But in principle the raising of the attachment before the institution of the suit or during its pendency does not make any difference, because the effect of the summary decision in the claim case, which constitutes the cause of action for the suit under Rule 63 for review of the decision, disappears with the termination of the attachment as a result of the dismissal of the execution proceedings.
3. Sri K.K. Sinha relied on two decisions. In Radhabai Gopal Joshi v. Gopal Dhondo Joshi, AIR 1944 Bom 50, their Lordships of the Bombay High Court quoted with approval the observations of Rankin, J., in AIR 1924 Cal 744, in support of the principle stated in the earlier paragraph; and added:
"Yet the parties to the appeal might fight it out on its merits to its end, not for the purpose of giving finality to the order of the executing Court which had already spent itself, but to have their dispute about the right to the property settled once for all. The decision will then debar the parties from agitating the same question again on the ground of 'res judicata', and not because of the finality of the previous order of the executing Court." There can he no dispute about this principle. But such a question should be fought out in a properly framed suit. This principle has also been discussed in the decision in AIR 1945 Pat 359. The appeal in which that decision was given arose cut of a suit by a defeated claimant. The suit was for a declaration that the plaint properties belonged to the plaintiffs, that the pro forma defendants had no interest therein, and that the order of attachment after the dismissal of the plaintiffs' claim under Order 21, Rule 58 was illegal and inoperative. There was also a prayer for a permanent injunction against the principal defendants, restraining them from getting the properties sold in the execution case in which the attachment had been made. During the pendency of the suit, however, the attachment had terminated on account of the dismissal of the execution proceedings. It was field that the suit treated as one under Rule 63 must be held to be barred by one year's rule of limitation laid down in Article 11 of the Limitation Act. But their Lordships further observed:
"The decision in the claim case is based primarily on a consideration of the decision of possession, and not on a question of title. On the other hand, the decision in the suit has to proceed primarily on the question of title, and the question of possession is only ancillary to the main question. Therefore, the scope of the decision in the claim case and in the subsequent title suit is not the same. The decision in the claim case is not 'res judicata' against the unsuccessful claimant on the question of title in a subsequent suit, though the shorter period of one year's limitation has been prescribed by the statute with a view to expeditious decision of the questions raised during the execution stage so that the execution proceedings may not be unduly delayed."
4. Keeping these principles in view, their Lordships came to the conclusion that the suit of a defeated claimant, though originally instituted under Order 21, Rule 63 of the Civil Procedure Code, could be treated as a suit for a declaration of title to the property and was maintainable in spite of the fact that it had been instituted more than one year after the decision of the claim case. The appeal was, therefore, allowed and the suit was decreed even though the attachment had terminated. But the facts of that case are distinguishable from those of the present case. In that case, besides the prayer for decoration that the properties belonged to the plaintiffs and that the order of attachment was Illegal and inoperative, there was also a prayer for a permanent injunction against the principal defendants, restraining them from getting the properties sold, in the execution ease. Thus it was a suit for declaration with consequential relief; and obviously, 'ad valorem' court fee must have been paid in that case: Moreover, the parties had adduced evidence on all the points in the Trial Court; and the Trial Court had given its findings thereon. Because of these facts, there was no difficulty in that case in granting a decree to the plaintiff at the appellate stage even though apparently the suit had been instituted originally as one under Order 21, Rule 63 of the Code of Civil Procedure.
In the present case, however, the only relief sought is for a declaration that the suit lands could not be sold in execution of a decree in Execution Case No. 98 of 1951. Further, the present suit has been decided by the Trial Court on a preliminary issue only, namely, whether the suit was maintainable under Order 21, Rule 63 of the Code after the attachment had been raised. If we accept Sri Kaushal Kishore Sinha's submission, the consequence will be that the plaintiff will have to file a petition for amendment of his plaint and pay additional court-fee; and then the case will have to be remanded to the Trial Court for hearing on all points after giving the parties opportunities to adduce evidence. This will result in unnecessary harassment to the defendants-respondents. If, on the other hand, Sri Kaushal Kishore Sinha's submission is rejected, there will be no inconvenience to any of the parties and the plaintiff will be at liberty to bring a regular suit for declaration of title within twelve years.
5. In view of the foregoing discussions, the contention of Sri Kaushal Kishore Sinha must be rejected; and it must be held that the present suit under Order 21, Rule 63 of the Code is not maintainable, since the attachment had terminated on the 11th November, 1953.
6. The Trial Court based its decision also on certain provisions of the Bihar Land Reforms Act, 1950, and said that whatever charge the plaintiff had on the suit lands, in view of the decree for maintenance, became extinguished and along with it the attachment also ceased to be in force on the date of the vesting of the zamindari property in the State. But it is neither desirable nor necessary to give any decision on the existence or extinction of the charge.
7. In the result, the appeal is dismissed; but, in the circumstances of the case, the parties will bear their own costs of this appeal.
Kanhaiya Singh, J.
8. I agree.