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Ambalal Sankaleshwar Oza Vs. Punjabhai Trikamlal Pandya - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 619 of 1941
Judge
Reported inAIR1943Bom129; (1943)45BOMLR203
AppellantAmbalal Sankaleshwar Oza
RespondentPunjabhai Trikamlal Pandya
Excerpt:
.....by executing court, whether permissible.;where an order of costs is made by the executing court in claim proceedings under o. xxi, rule 58, of the civil procedure code, 1908, and the party against whom it is made thereafter succeeds in the regular suit under o. xxi, rule 63, of the code, the executing court cannot grant to such a party a refund of the costs recovered from him in the claim proceedings, either under section 144 or section 151 of the code.;chintaman ramjipant v. govind vithal [1938] a.i.r. nag. 376 and nambi veettil tar wad tawazhi karnavan v. athikarath valappil tarwad karnavan [1925] a.i.r. mad. 233 not followed.;raghu nath das v. badri prasad, (1883) i.l.r. 6 all. 21 v.e.r.m. firm v. mating po kyone (1927) i.l.r. 6 ran. 408 phul kumari v. ghanshyam misra (1907) l.r. 35..........the opponent. the opponent then filed a suit under o. xxi, rule 63, for a declaration that the suit property was not liable to attachment and sale in execution of the petitioner's decree. the matter came to this court in second appeal, and it was held that the opponent was entitled to a declaration. that the suit property was not liable to be sold in execution of the decree. thereafter the opponent applied under section 144 of the civil procedure code for refund of the costs which the petitioner had recovered from him on the ground that the executing court's order was set aside by the decree in the regular suit with the result that the petitioner would not be entitled to the costs awarded to him. the court held that even though the application was not strictly maintainable under.....
Judgment:

Divatia, J.

1. This is a revisional application against an order of the lower Court that the petitioner should refund the costs which he had recovered from the opponent in pursuance of an order made in certain claim proceedings under O. XXI, Rule 58, of the Civil Procedure Code. The facts are shortly these :-The petitioner had obtained a decree against one Jivanlal and in execution he attached certain lands belonging to the judgment-debtor. The opponent applied for raising the attachment. The application was dismissed with costs on the ground that the opponent was not in possession of the property. Thereafter the petitioner recovered the costs of those proceedings from the opponent. The opponent then filed a suit under O. XXI, Rule 63, for a declaration that the suit property was not liable to attachment and sale in execution of the petitioner's decree. The matter came to this Court in second appeal, and it was held that the opponent was entitled to a declaration. that the suit property was not liable to be sold in execution of the decree. Thereafter the opponent applied under Section 144 of the Civil Procedure Code for refund of the costs which the petitioner had recovered from him on the ground that the executing Court's order was set aside by the decree in the regular suit with the result that the petitioner would not be entitled to the costs awarded to him. The Court held that even though the application was not strictly maintainable under Section 144, it could be entertained under the inherent jurisdiction of the Court under Section 151, and that the applicant would be entitled to refund because as a result of the decree in the regular suit the order of costs in the claim proceedings became unjust and inequitable so that the opponent was not entitled to keep the costs which he had recovered. An appeal was preferred against that decision to the District Court. The learned Judge held that the appeal was not maintainable, and that in any case the order of costs became inequitable by the decree in the regular suit in favour of the opponent. The appeal was, therefore, summarily dismissed.

2. The petitioner has now applied in revision against the original order of the 'executing Court directing refund. It is contended on his behalf that the Court had no power to direct a refund either under Section 144 or Section 151 of the Civil Procedure Code inasmuch as the decree in the regular suit, even if it had the effect of setting aside the order in the summary proceedings, would not affect the order of costs, whatever it was, made in the claim proceedings. The point, therefore, is whether the order of costs made by the executing Court against the unsuccessful party in the claim proceedings should be regarded as having been set aside by the decree in the regular suit in favour of a party against whom the order was made. In order to appreciate this point it is necessary to see what is the nature of the order made in the main claim proceedings and the nature of the decree made in the regular suit thereafter.

3. When a claim petition is made under Rule 58 of O. XXI, the claimant or objector has to adduce evidence under Rule 59 to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Under Rule 60, if the Court was satisfied among other things that the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, the Court shall make an order releasing the property from attachment wholly or partially. Then Rule 61 provides that where the Court was satisfied that the property was, at the time when 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, the Court shall disallow the claim. Finally, under Rule 63, where a claim or an objection was preferred, the party against whom an order was made may institute a suit to establish the right which he claimed to the property, but, subject to the result of such suit, if any, the order shall be conclusive.

4. It would thus appear that whenever a claim is preferred by a person under Rule 58, the Court has to see in whose possession the property was, and what was the nature of that possession. If it is found that the property, when attached, was in the possession of the judgment-debtor as his own property or that it was not in the possession of the claimant, it would disallow the claim, and then the claimant will have to file a regular suit for a declaration to establish his right to the property. The suit need not be limited to such a declaration but may include all consequential reliefs which may flow from the declaration. It is held in Phul Kumari v. Ghanshyam Misra and Harishankar Jebhai v. Naran Karsan I.L.R. (1893) 18 Bom. 260 that the effect of a decree passed in the plaintiff's favour in such a suit would in substance be to set aside the order made by the executing Court. The question is whether the decree granting a declaration in the plaintiff's favour would have the effect of not only setting aside the order allowing or disallowing the claim but also of setting aside the order of costs in the claim proceedings. There is a difference of opinion on this point. The Madras High Court has held in Nambi Veettil Tarwad Tavazhi Karnavan v. Athikarath Valappil Tarwad Karnavanthat the decree in such a suit would not have the effect of setting aside the order of costs and that the Court passing the decree has no power of making or varying the order of costs of the claim proceedings as the decree in the suit simply declares or rejects the claim of the unsuccessful claimant. On the other hand, in Chintaman Ramjipant v. Govind Vithal A.I.R. [1938] Nag. 376 the Nagpur High Court has held that: the decree in the plaintiff's favour in such a suit would also have the effect of setting aside the order of costs in the claim proceedings. What happened in that case was that the claimant's application was rejected with costs. He filed a regular suit for a declaration of his right to the property attached without seeking any further relief about costs of the claim proceedings. The suit was decreed in the plaintiff's favour, the order of costs being that each party should bear his own costs. The successful party in the claim proceedings; had not executed the order of costs in his favour. After the decree in the suit he applied to execute that order, and it was held that the Court; trying the suit, while directing each party to bear his own costs, could not have intended to keep alive the order of costs in the claim proceedings, because that order must be deemed to have been set aside wholly and not in part and the decree superseded the whole order of the executing Court. The Allahabad and the Rangoon High Courts have taken the middle position. According to the Allahabad High Court the executing Court becomes functus officio after passing its order, and if costs are recovered by the successful party, it has no power to direct a refund to the successful party in the regular suit : see Raghu Nath Das v. Badri Prasad. (1883) I.L.R. 6 All. 21 The Rangoon High Court has held in V.E.R.M. Firm v. Maung Po Kyone (1927) I.L.R. 6 Ran. 408 that the Court trying the regular suit would have the power to pass an order about costs in the claim proceedings if a relief to that effect was asked for by the plaintiff in that suit. But in absence of such relief the order of costs could not be said to have been automatically set aside by the decree in the regular suit. In that case the claimant's petition was dismissed and a suit was filed by him for a declaration of his rights and for the total costs incurred by him in the claim proceedings including the costs awarded against him by the executing Court. It was held that the Court, trying the suit, could award such total costs by way of damages as a result of his success in the suit, the effect of which was to set aside the order in the claim proceedings.

5. It cannot be said, in my opinion, that the order of costs made by the executing Court in the claim proceedings is automatically set aside if the party against whom it is made succeeds in the regular suit. In the claim proceedings it is the question of possession that has to be decided, while in the regular suit the unsuccessful claimant can ask for a declaration of his right to the property and also for other reliefs. It is indeed possible that a claimant may have a bad case in the claim proceedings and still a good case in a regular suit on title. In the claim proceedings the order consists of two parts, allowing or rejecting the claim and awarding or refusing costs. The setting aside of the first part of the order in the regular suit does not automatically set aside the second part. It would be open to the unsuccessful party to claim a declaration and consequential reliefs which may include the setting aside of the order of costs in the claim proceedings, but where no such relief is granted, the executing Court would have no power to change its order of costs, much less grant a refund where costs have been recovered. To hold that the order of costs is impliedly vacated if the suit succeeds would be tantamount to treating the suit as an appeal against the summary order. Such a suit, however, is not a direct appeal although it may have the effect of nullifying the order by allowing or disallowing the claim. The order is not reversed or set aside in the sense of its reversal by an appellate Court. In my opinion, therefore, the view taken by the Nagpur High Court is not in consonance with the provisions of Rules 58 to 63 of O. XXI. There would not necessarily be an anomaly if the order of costs in the claim proceedings stands in spite of the unsuccessful party succeeding in the suit. The order of costs is entirely in the discretion of the Court and the question before the executing Court is not necessarily the same as the question before the Court, in the regular suit. It is conceivable that a party may not succeed on the question of possession in the claim proceedings and may still succeed in the regular suit for a declaration of his right to the property. It cannot, therefore, be said that the order of costs in the claim proceedings must always be regarded either as unjustified or impliedly reversed simply because of the success of the party in the regular suit. The Madras view that the Court hearing the suit has no power to change the order of costs is also, in my opinion, not correct. It would be open to the party to claim a relief with regard to that order passed against him in the claim proceedings, and the Court can, in a proper case, grant it because it would be a consequential relief. But even assuming that it has no such power, the executing Court has no power under its inherent jurisdiction or under Section 144, Civil Procedure Code, to make amends to a party simply because he gets a declaration of his right to the property. The order is, therefore, set aside, and the rule is made absolute with costs in this Court and in the trial Court.


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