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Jagjivan Dhondiram Kirad Vs. Gopal Vinayak Joshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 339 of 1952
Judge
Reported inAIR1955Bom397; (1955)57BOMLR517
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58, 58(1), 59, 60, 61, 62 and 63; Evidence Act, 1872 - Sections 115; Provincial Insolvency Act - Sections 34; Specific Relief Act - Sections 9
AppellantJagjivan Dhondiram Kirad
RespondentGopal Vinayak Joshi
Appellant AdvocateR.B. Kotwal, Adv.
Respondent AdvocateB.N. Gokhale, Adv.
Excerpt:
.....no. 6 was precluded from disputing the title of the plaintiff in respect of one-third share in the suit property. ;official receiver, south malabar v. veeraraghavan pattar (1921) i. l. r. 45 mad. 70 and mukhram pandey v. arjun missir [1934] a. i. r. pat. 511 referred to. ;ningauda girimallappa patil v. nabisaheb abalal patil (1940) 44 bom. l. r. 543 explained. ;order xxi, rule 59, must be liberally construed. when it refers to the interest in the property, or possession of the property, attached, it obviously refers to the applicant or his predecessor-in-title. the evidence which is expected to be adduced by the party applying under rule 58 about his possession or interest in the property in question is not necessarily by reference to himself but it may and can be by reference to..........have applied challenging the validity of the attachment levied against the 1/3rd share in the suit property under order 21, rule 58,incidentally we may also have to consider, whether the order which was passed on the application preferred by defendant 6 under order 21, rule 58, attracts the provisions of order 21, rule 63.2. it is common ground that if the provisions of order 21, rule 63, apply, then it would not be open to defendant 6 to raise the contention which he has done in the present suit, he however argues that it was not competent to him to make an application against the order of attachment passed by the executing court in darkhast no. 617 of 1937; and he also suggests that the order which was passed in those proceedings was not of the character which could attract the.....
Judgment:

Gajendragadkar, J.

1. Who is entitled to make an application for setting aside the attachment levied in execution proceedings; that is the short question which arises in this second appeal. Its decision would depend upon the construction of the provisions contained in Rules 58 and 59 of Order 21, Civil P. C. This question arises in this way.

The property in suit is a land. It originally belonged to three brothers -- Vishwanath, Vamam and Vinayak. In 1903 a partition took place between the brothers as a result of which Vishwanath separated from the family. Though at this partition the sheres of all the three brothers were determined and divided, it appears that two brothers --Vaman and Vinayak -- continued to remain joint. At this partition the property in suit was kept joint.

It is common ground that in this property the family was entitled to a 1/3rd share; so that the three brothers would be entitled to a 1/9th share each. In 1905 Vaman died. Vaman's share devolved upon Vinayak, since the two were living in joint-ness.

In the property in suit Vishwanath was entitled to a 1/9th share and Laxmibai -- Vinayak's widow --who inherited the property on Vinayak's death in 1918 was entitled to a 2/9th share. On 4-2-1938, Laxmibai purported to sell a 1/3rd share in this property to defendant 6. It is clear that all that she could have conveyed to the purchaser was 2/9th share of the property and not 1/3rd.

One Joshi obtained a money decree against Vishwanath in Civil Suit No. 363 of 1933, In execution of this decree he filed darkhast No. 617 of 1937. On 15-4-1937, at the instance of the decree-holder 1/3rd share in the properly in suit came tc be attached as belonging to the judgment-debtor Vishwanath. On 23-3-1938, the purchaser from Laxmibai, who is defendant 6 in the present suit, applied to set aside the said attachment, on the ground that the judgment-debtor Vishwanath was entitled only to 1/9th share and not 1/3rd share as alleged by the decree-holder. On 28-8-1939, the application made by defendant 6 under Order 21, Rule 58, came to be dismissed.

Thereafter the property which was attached in execution was put to sale, and the plaintiff became the auction purchaser; and on 5-9-1940, a sale certificate was issued in his favour. It is as an auction purchaser of the property in suit that the plaintiff has filed the present suit on 25-11-1944 in which he claims possession of his 1/3rd share of the property in suit by partition by metes and bounds. Defendant 6, who is the purchaser from Laxmibai, resisted this claim on the ground that Vishwanath was entitled only to 1/9th share in this property, and so the auction purchaser cannot get any better title than that of Vishwanath.

This plea was met by the plaintiff on the ground that an application had been made by defendant 6 challenging the validity of the attachment of 1/3rd share in tile property in darkhast No. 617 of 1937; the said application had been dismissed; and no suit had been tiled within one year from the date of the dismissal of the said application. In consequence the order passed in those proceedings has become conclusive under the provisions of Order 21, Rule 63, Civil P. C.

When the plaintiff sought to raise this difficulty in the way of defendant 6, he replied by alleging that it was held in those proceedings that he was not competent to make an application, and the order which was passed on this ground could not attract the provisions of Order 21, Rule 63. That is how the principal question which has arisen in the present suit and therefore in the second appeal is, whether defendant 6 could have applied challenging the validity of the attachment levied against the 1/3rd share in the suit property under Order 21, Rule 58,

Incidentally we may also have to consider, whether the order which was passed on the application preferred by defendant 6 under Order 21, Rule 58, attracts the provisions of Order 21, Rule 63.

2. It is common ground that if the provisions of Order 21, Rule 63, apply, then it would not be open to defendant 6 to raise the contention which he has done in the present suit, He however argues that it was not competent to him to make an application against the order of attachment passed by the executing Court in Darkhast No. 617 of 1937; and he also suggests that the order which was passed in those proceedings was not of the character which could attract the provisions of Order 21 Rule 63.

3. Order 21, Rule 58, deals with the investigation of claims to and objections to attachment of attached property. Under Sub-rule (1) of Rule 58 where any property has been attached in execution of a decree, it would be open to a third party to prefer a claim to that property, or to raise an objection to the attachment of that property on the ground that such property is not liable to such attachment in execution proceedings.

If such a claim is made, or such an objection is raised, the Court was to proceed to investigate into the claim and to consider the validity of the objection. Then follows Rule 59 which is materail for the purposes of deciding the point in this appeal. This rule provides that

'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'.

Mr. Kotwal contends that this rule must be strictly & literally construed; & the summary remedy made available by the provisions contained in Rule 58 onwards must be confined to persons who satisfy the requirements of Rule 59. According to Mr. Kotwal, whoever wants to avail himself of this summary procedure must show that at the date of the attachment, he had some interest in, or was possessed of, the property attached. In the present case attachment had been levied on 15-4-1937, whereas the sale by Laxmibai to defendant 6 took place on 4-2-1938. It is on these two dates that Mr. Kotwal's argument is based.

He points out that it could not be said by defendant 6, the applicant in those proceedings under Order 21, Rule 58, that he had interest in, or was possessed of, the property attached at the date of the attachment; and so if he was not competent to make an application under Order 21, Rule 58, then whatever may have been the pleas raised in his application, the final order passed on his application would not attract the provisions of Order 21. Rule 63.

4. In our opinion this argument cannot be accepted. Rule 59 in the context must, we think, by liberally construed, and it would be wholly inappropriate & unreasonable to adopt the strict and literal construction on which Mr. Kotwal relies. If the literal or mechanical construction is adopted, it would lead to the most unreasonable result in the case of property attached if the owner of the property attached dies after attachment, and before he could make an application under Rule 58; in such a case the heir of the deceased owner cannot avail himself of the summary procedure prescribed by Rules. 58 to 63.

Mr. Kotwal seems to suggest that in such a case the only remedy available to the heir would be to file a suit. We do not think that that is the intention of the Legislature in enacting the provisions of Rule 59. When Rule 59 refers to the interest in the property or possession of the property attached, it obviously refers to the applicant or his prede-cessor-in-title. Therefore we are not satisfied that defendant 6 was not competent to make an application under Rule 59 on the ground that he happened to purchase the property subsequent to the date of the attachment.

On his own case his predecessor-in-title Laxmi-bai was in possession of the said property and had interest in the said property at the date of the attachment; and if she could have applied to set aside the attachment under Rule 58, we do not see why the purchaser of her right, title and interest, could not have made a similar application. There-tore in our opinion the application No. 153 of 1938 made by defendant 6 under Rule 58 was a perfectly competent application.

5. In support of his argument that the words used in Order 21, Rule 59, must be literally construed, Mr. Kotwal has referred as to two reported decisions. In -- 'Official Receiver, South Malnbar v. Vecra-raghayan Pattar', AIR 1922 Mad 189, an application had been made by the Official Receiver against the order of attachment levied in respect of the property of a debtor, who had been adjudged an insolvent subsequent to the date of attachment and the question which the Court had to consider was, whether it was open to the Official Receiver to make an application under Order 21, Rule 58. The Court answered this question against, the Official Receiver.

In doing so, it has no doubt been observed in the course of his judgment by Sadasiva Ayyar J. that the reason why the Official Receiver could not make an application under Order 21, Rule 58, was that 'he could not adduce evidence to show that at the date of attachment he had an interest in, or was possessed of, the property attached;' and Mr. Kotwal naturally relied upon this sentence.

In our opinion it would not be fair to take this solitary sentence in the judgment and to regard that sentence itself as the basis of the decision. The basis of the decision obviously was that the Official Receiver in whom the property of the insolvent had vested, after the adjudication of insolvency could and should have moved under Section 34, Provincial Insolvency Act. Indeed that was his proper remedy.

But instead he had purported to make an application under Order 21, Rule 58, and when competency of this application was considered by the Madras High Court, they found that it was an application made not by a third party setting up a claim to the property attached or raising an objection to the attachment of the property, but it was an application by the Official Receiver who in a sense was the representative of the judgment-debtor himself; and it is perfectly clear that under Rule 58 of Order 21, the judgment-debtor cannot be heard to contend that ia. execution of the decree passed against him, his own property cannot be attached.

The enquiry contemplated under Order 21, Rule 58, and the following rules is an enquiry into a claim-made by, and an objection raised by, a third party to the attachment of the property; the provisions as to this enquiry could not obviously be invoked by the person who stood in the shoes of the judgment-debtor himself. That, in our opinion, is the basis of the decision of the Madras High Court. It that be so, then the solitary sentence on which Mr. Kotwal relies cannot in our opinion assist has contention in the present case.

It is clear that the application in question had set up a claim which was referable to and was not independent of the judgment-debtor's title.

6. The position with regard to the other judgment to which Mr. Kotwal referred is exactly the same. That is a decision of the Patna High Court reported in -- 'Mukhram Pandey v. Arjun Missir, : AIR1934Pat511 . In this case an application had been made under Order 21, Rule 58, by an auction purchaser of the judgment-debtor's interest, and it was held that he could not make an application under the said provisions. It would be noticed that this again was an application made on-the basis of the judgment-debtor's title in the property attached.

It was not an application, made, or au objection raised by a third party setting up his own title to the property under attachment. So the Court held that an application by a party who has been in the same position as the judgment-debtor himself cannot be made under Order 21, Rule 58. This decision, also does not help Mr. Kolwal.

7. Mr. Kotwal then referred us to the provisions of Section 9, Specific Relief Act and contrasted the words used in this section with the words used in Rule 59 of Order 21. Section 9, Specific Relief Act provides for a suit by a person dispossessed of im-movcable property and it gives the right to file such-a suit to the person dispossessed or any person claiming through him; and says Mr. Kotwal, that whenever the Legislature wants to give a right to make an application or to bring an action either to the party himself or his successor-in-interest, the Legislature knows how to use appropriate words in that behalf.

This argument in our opinion is inconclusive. By the provisions of Section 9 the right to file a suit is intended to he conferred not only upon the party who is dispossessed, but even on his tenant or a mortgagee in possession. That is why it was thought necessary by the Legislature to add the words 'any person claiming through him' in Section 9, Specific Relief Act. That is not the position in regard to the application for enquiry which is contemplated under Order 21, Rule 59.

In our opinion, on a fair, reasonable and liberal construction of the words used in Rule 59, it must be held that the evidence which is expected to be adduced by the party applying under Rule 58, Order 21, is about his possession or interest in the property in question, is not necessarily by reference to himself but it may and can be by reference to his predecessor-in-title. That is why we hold that the application made by defendant 6 in the earlier dark-hast proceedings was perfectly competent under Order 21, Rule 58.

8. Then Mr. Kotwal contends that in the present case the order which was passed was solely on the ground that the application made by his client was incompetent, and so, according to him, the provisions of Order 21, Rule 63, cannot be invoked against the plea which he seeks to raise in the present suit. We are not satisfied that this contention is well founded either. Rule 63 provides that;

'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.''

It is common ground that the application made by defendant 6 has been dismissed, and that he has not filed a suit within one year thereafter as required by Rule 63. In considering the effect of Rule 63, it is necessary to bear in mind that as a result of this rule what becomes conclusive is the order passed in the enquiry held under Rule 58. It is not the reasons given by the learned Judge in passing the final order, nor even the findings recorded by him in the said enquiry that become conclusive.

It is the final order either allowing or dismissing the application that becomes conclusive; and there can be no doubt that in the proceedings which were instituted by defendant 6 under his application No. 153 of 1938, the final order was that the application should be dismissed with costs. This order has became conclusive, and the inevitable consequence of this position is that defendant 6 cannot raise any plea which will affect the said order.

9. Mr. Kotwal however argues that if the order was passed solely on the ground that the application was incompetent, it would not be open to the plaintiff now to contend that the application was competent, and so urge that the dismissal of the application creates a bar under Rule 63 of Order 21.

In other words Mr. Kotwal seeks to plead estoppel against the plaintiff, or alternatively he contends that the plaintiff cannot be allowed to approbate and reprobate.

In point of fad it would not be correct to say that the order dismissing the application of defendant 6 came to be passed solely on the ground that the application was incompetent, Three grounds have been set up in the order; one of them no doubt refers to the conclusion of the learned judge that the sale deed had not been produced by defendant 6 and it was not shown that defendant 6 had any title in respect of the property attached, or that he was in possession of the property attached on the date of attachment.

The second ground was that defendant 6 had not cared to file any affidavit, and so the sale deed itself had not been proved; and the third ground was that defendant 6 was not present on the date of the enquiry. Therefore it would not be accurate to say that the order of dismissal came to be passed only on one ground as suggested by Mr. Kotwal.

It is well settled that even if an order dismissing the application is passed for default in this enquiry, such an order becomes conclusive, subject to the result of a suit under Rule 63. Therefore, in our opinion, the argument based on the assumption that the order came to be passed only on one ground which was urged by the plaintiff in those proceedings is not correct in fact. Besides, even if the application had been dismissed solely on the ground, and that ground had been urged by the plaintiff in those proceedings, we do not see how estoppel can be effectively pleaded against the plaintiff by defendant 6.

There can be no estoppel against statute and the bar which is pleaded arises from the provisions contained in Order 21, Rule 63. Whatever may have been the nature of the pleadings raised by the opponent or defendant 6 in those proceedings, if the final order was passed in those proceedings dismissing his application, it was obligatory upon defendant 6 to have brought a suit within one year thereafter if he wanted to challenge the validity of the said order. Therefore, in our opinion, there

is no scope for invoking the provisions of estoppel against the plaintiff in the present case.

10. Mr. Kotwal has referred us to the decision of Divatia J. reported in -- 'Ningauda Girimallappa Patil v. Nabisaheb Abalal Patil', : AIR1942Bom263 and he has relied upon certain observations made by the learned Judge (P. 266).

'To attract the applicability of Order 21, Rule 63, observes Divatia J., 'the order complained of must relate to the merits of the claim and must not be passed on the preliminary ground that the Court cannot enquire into the merits of the claim'.

Thus stated 'prima facie' the proposition does appear to lend some support to Mr. Kotwal's contention. But in examining the effect of the decision we cannot overlook the facts on which Divatia T. came to decide the matter.

In that case certain property had been attached. Thereafter- an application had been made challenging the validity of the said attachment. Pending the proceedings in this application, the property came to be sold, and the application was therefore dismissed on the ground that since the property had been sold and attachment had come to an end there was no attachment in law and in fact, and therefore the question as to whether attachment had been lawfully levied or not did not survive.

It seems to us that on these facts it would have been impossible to allow the bar of Rule 63 to be raised against the party, because the final decision was that there was nothing to consider since the attachment itself had lapsed as a result of the auction sale which had taken place pending proceedings in that application itself.

That is not the position in the appeal before us. At the time when the application was dismissed, attachment was in existence and sale had not taken place, so that if the applicant had succeeded, attachment would have been raised, and no sale would have taken place. Therefore, in our opinion, the observations made by Divatia J. cannot be pressed into service in support of the unqualified proposition for which Mr. Kotwal contends, that an application cannot be made by a party under Order 21, Rule 58, unless he can show that he was in possession of the property or had a claim to the property on the date of attachment; or that if an order is passed on such an application on the ground that the application was incompetent, the provisions of Rule 63 of Order 21, cannot be invoked. The decision in 'Nin-gauda's case (C)' must in 'our opinion be read in the light of the facts of that case and those facts are obviously distinguishable from the facts before us.

We must, therefore, hold that the lower appellate Court was right in coming to the conclusion that the failure of defendant 6 to bring a suit within one year after the order dismissing his application was passed under Order 21, Rule 58, precludes him from disputing the title of the plaintiff in respect of 1/3rd share in the property in suit. The result is that the appeal fails and must be dismissed with costs.

11. It is no doubt a very hard case on facts, because if the bar raised by Rule 63 of Order 21 had not come in the way of defendant 6, he would clearly have succeeded in so far as the 2/9th share of the property is concerned. I have already mentioned that it has been found that Vishwanath was entitled only to a 1/9th share and that it is the purchaser of the right, title and interest of Vishwanath who is getting 1/3rd share in the property in suit. We are, therefore, of the opinion that the best order as to costs in the circumstances would be, that the parties should bear their own costs of this appeal.

12. Appeal dismissed.


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