1. This is an appeal by the plaintiff in a suit to recover possession of certain properties. The facts which have led to the appeal are shortly as follows:-
2. Defendants Nos. 1 to 4 are brothers constituting a joint family having an undivided one-fourth share in the suit lands. They had mortgaged them with possession to one Mirza Abdul Begg for Rs. 200 some time before 1930. On March 25, 1930, defendants Nos. 3 and 4 redeemed the property from the mortgagee. Defendant No. 3 had contributed Rs. 50 for his one-fourth share, and the balance of Rs. 150 was paid by defendant No. 4 on behalf of himself and defendants Nos. 1 and 2. He was thus subrogated to the position of the mortgagee Mirza so far as the shares of defendants Nos. 1 and 2 were concerned. One Kadgauda had obtained a money decree against defendant No. 1 alone, and he filed Darkhast No. 345 of 1935 for bringing his one-fourth share in the suit property to sale. On February 12, 1936, defendant No. 4 applied to the Court under O. XXI, Rule 58, of the Civil Procedure Code, 1908, to have the share of defendant No. 1 sold subject to the encumbrance of Rs. 50 due to him by virtue of the subrogation. The sale, which had not been stayed during the pendency of this application, took place on July 16, 1936, and the present plaintiff became the auction-purchaser. The claim petition came for hearing on August 11, 1936,. after the sale had taken place. The Subordinate Judge was of the opinion that as the sale had already taken place, the previous attachment of the property at the instance of the decree holder was no longer subsisting and that the application was liable to be rejected as not tenable. In his view the attachment having come to an end, the claimant could not get the sale set aside or take steps to bind the purchaser by virtue of any order in that application. The application was, therefore, dismissed. No suit to have the order of dismissal set aside and to have his claim established was brought by the claimant defendant No. 4 within one year after the passing of that order. Thereafter he sold his rights under the mortgage to which he had been subrogated to defendant No. 5 on February 2, 1937. The plaintiff as the auction purchaser in the execution sale filed the present suit on March 22, 1938, to recover one-fourth share in one land and one-eighth share in the other land of defendant No. 1. His case was that as defendant No. 4 did not file a suit under O. XXI, Rule 63, within one year from the date of the dismissal of his application, he was precluded from setting up his rights under the in cumbrance, and that the plaintiff had, therefore, acquired the entire rights in the property without any burden in favour of defendant No. 4.
3. The suit was defended by defendant No. 4, and the main question was whether he was debarred from setting up the charge in view of the dismissal of his application in the claim proceedings. The trial Judge held that he was debarred because his application was made under O. XXI, Rule 58, and the order thereon came under Rule 63. That being so, he ought to have filed a suit within one year from the date of the order, and he had therefore lost his right in the present suit to set up his claim which had been rejected by the executing Court.
4. On appeal by defendants Nos. 4 and 5, the Assistant Judge reversed that decision and held that the rights of those defendants relating to the in cumbrance on the property had not been lost by the order in the claim proceedings as it was not necessary for them to set it aside within one year under Article 11 of the Indian Limitation Act. The learned appellate Judge has distinguished the decision of this Court in Trimbak V. Ziparu (1932) 35 Bom. L.R. 147, and has followed the two decisions of the Madras High Court in Abdul Kadir v. Somasundaram Chettiar (1922) I.L.R. 45 Mad. 827 and Kandasami V. Sivagarunatha : AIR1935Mad328 , in taking the view that the dismissal of the claim petition on the ground that it was not tenable after the sale took place was not an order under O. XXI, Rule 63. He, therefore, allowed the appeal.
5. The plaintiff has now appealed to this Court and the main contention of his learned advocate is that the order passed by the executing Court must be taken to be one under O. XXI, Rule 63, with the result that a suit ought to have been filed within one year from the date of the order.
6. Rule 58 of O. XXI says that 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 was not liable to such attachment, the Court must proceed to investigate the claim or objection, provided that no such investigation shall be made where it considers that the claim or objection was designedly or unnecessarily delayed. It is further provided that where the property to which the claim applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim.
7. Then Rule 63 says 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.
8. Article 11 of the Indian Limitation Act prescribes a period of one year for a suit by a person against whom an order is passed on a claim preferred to or an objection made to the attachment of property in execution of a decree.
9. It is contended on behalf of the appellant that under those provisions of law where an application had been made by a claimant objecting to attachment and an order had been passed against him, he must institute a suit to establish his claim within one year from the date of the order. It is true that Rule 63 speaks of an order and does not specify the nature of the order. But in order to see what the nature of the order should be, we must read all the rules from 54 to 63 and determine the intention of the legislature. This point has been considered in a number of cases of different High Courts. They may be broadly divided into two classes, firstly, where the order on the application had been passed before the property was sold in execution, and, secondly, where it was made after the sale took, place. The decisions in Trimbak V. Ziparu, V enkataratnam V. Ranganayakamma (1918) I.L.R. 41 Mad. 985, F.B., Kandasami v. Sivagamnatha, and Cmanore Bank, Ltd. v. Madhavi : AIR1942Mad41 are cases falling under the first class where the order was passed before the sale although the reasons for passing the order were different in all; these cases. In Trimbak v. Ziparu the order was passed because the application fell under the proviso to Rule 58. In Venkataratnam v. Ranganayakamma the order was passed because the application was filed late and therefore the Court refused to investigate the claim. In Kandasami v. Sivagamnatha the application was allowed to be withdrawn by the claimant, and in the last case of Cananore Bank, Ltd. V. Madhavi the application was not pressed at the hearing. In Kandasami V. Sivagamnatha it was held that the order did not fall under Rule 63 as the claim had not been disposed of on merits, while in the other three cases the decision was that it fell under that rule. It may be taken that where an order is passed, either on merits or on the acquiescence of the applicant, before the sale has taken place, it is an order dismissing the application of the claimant, and that it must, therefore, fall under O. XXI, Rule 63.
10. The second class may be sub-divided into two kinds, first, where the application of the claimant is made after the sale is held, and, second, where it is made before the sale but the order thereon has been passed after the sale. With regard to these two sub-divisions there has been difference of opinion among the High Courts. In Jagmnadham v. Bura Pydayya (1931) I.L.R. 55 Mad. 251, which is a decision by a single Judge, the view taken was that the executing Court can consider a claim under O. XXI, Rule 58, even if the application was made after the sale, and that the order on such an application would be governed by O. XXI, Rule 63. The decision was also based on the ground that the case fell within the proviso to Rule 58, that is to say, there was unnecessary delay on the part of the claimant. The reason given for the decision was that the attachment must be deemed to be subsisting even after the sale took place and to be continuing till any of the three occasions mentioned in O. XXI, Rule 55, had occurred. The previous decision of the same High Court in Abdul Radir v. Somasundaram Chettiar was sought to be distinguished on the ground that there the lower Court had refused jurisdiction and had not acted under O. XXI, Rule 58. In the latter decision the Chief Justice, to whom the matter was referred on account of difference of opinion between the two Judges who originally heard the appeal, was of the opinion on the facts that the claim petition must have been made after the sale actually took place though on the same day, and that the application having been dismissed on the ground that the sale had already been concluded, the order passed by the executing Court did not fall under O. XXI, Rule 58. This decision is inconsistent with that of the single Judge in Jagannadham V. Bura Pydayya. The observations of the full bench in the latest decision of the Madras High Court in Cmanore Bank, Ltd. v. Madhavi are contrary to the decision in Jagannadham's case. The order of the executing Court in the full bench case was passed before the sale took place, but it was observed that the dismissal of a petition presented after the Court had sold the attached property on the ground that the Court had no jurisdiction to entertain it can scarcely be regarded as an adverse order which was required to be set aside under O. XXI, Rule 63. The reasoning in Jagannadham v. Bura Pydayya, that the attachment subsists even after the sale takes place under O. XXI, Rule 55, is not convincing. The rule says that where the decrial amount is paid into Court or satisfaction of the decree is otherwise made through the Court, or the decree is set aside or reversed, the attachment shall be deemed to be withdrawn. But the question is not when the attachment should be deemed to have been withdrawn but whether the order on an application under Rule 58 is required to be made before the sale takes place. It is provided in Sub-rule (2) of that rule that the sale may be adjourned pending the investigation of a claim preferred under Sub-rule (I), That along with the provisions of Rule 60 indicates the intention of the legislature that the application should be decided before the sale, and if, therefore, the Court refuses to deal with it after the sale had somehow taken place, the order of refusal cannot come under Rule. 63.
11. The same criticism, in my opinion, applies to another case on which reliance has been placed on behalf of the appellant, namely Ramchandra v. Kayam Hussain [1940) Nag. 306. There it was held that the objection to attachment after the sale took place was tenable under O. XXI, Rule 58, that the order dismissing the objection fell under Rule 60, and that a suit had to be filed under Rule 63. The learned Judge based his decision mainly on Jagannadham v. Bura Pydayya, and he also accepted the reasoning based upon O. XXI, Rule 55.
12. There are on this point two decisions of the Patna High Court, which are opposed to each other. In Puhupdei Kuar v. Ramcharitar  A.I.R. Pat. 76 it was held that after the sale took place the attachment was ipso facto determined and the Court had no longer any jurisdiction to try the claim under O. XXI, Rule 58. There the claim application was made before the sale, and thereafter the sale took place, and after the sale the claim objection was allowed. It was held that the decree-holder need not have filed a suit under O. XXI, Rule 63. This decision was by a division bench, but in a subsequent decision in Deoki Singh v. Sri Thakur Raghavindra Bhagwan  A.I.R. Pat. 430, a single Judge of that High Court refused to follow the former decision and held that where an application under O. XXI, Rule 58, was filed but was not heard till after the sale was held, the Court did not cease to have jurisdiction to hear the application merely because the sale had already taken place.
13. The High Court at Rangoon has held in Maung Po Pe v. Maung Kwa (1927) I.L.R. 5 Ran. 751 that an application for removal of attachment under O. XXI, Rule 58, of the Civil Procedure Code, should be made before the property attached has been sold, and that a Court acts in excess of jurisdiction if it entertains such application after the sale. The learned Judge there followed the decision of the Calcutta High Court in Gopal Chandra Mukerjee v. Notobar Kundu (1912) 16 C.W.N. 1029. It was held in this latter case that the Court acted in excess of its authority and in violation of the express provisions of the statute in allowing a claim petition preferred under O. XXI, Rule 58, after the property attached was sold. The facts of that case were very much similar to those of the present case. The claim was preferred there in February, 1911, the property was sold in April, and the order was passed in August of that year. Rules 58 and 60 were construed together and it was held that Rule 60 indicated that an order upon an application under Rule 58 must be made before the sale had taken place, and upon the sale the application by which the claim had been preferred ipso facto terminated. That view has been adhered to by that High Court in a later decision in Sasthi Charm V. Gopal Chandra (1937) 41 C.W.N. 845. It was there held, following Gopal Chandra Mukerjee v. Notobar Kundu, and differing from Jagannadham v. Bura Pydayya, that after a sale had taken place the executing Court had no jurisdiction to entertain a claim or objection filed under O. XXI, Rule 58, even though the application might have been made prior to the sale and the sale might not have been confirmed at the date of the order. There the application under Rule 58 filed before the sale was dismissed for default after the sale, and it was held that a suit brought more than one year after the date of the order was not barred under Article 11 of the Indian Limitation Act because the order did not fall under O. XXI, Rule 63.
14. Lastly, there is a decision of the Lahore High Court in Sant Lal v. Udho Ram-Walait Ram (1938) I.L.R. 19 Lah. 593. It was held there that the executing Court had no jurisdiction to entertain a claim or objection under O. XXI, Rule 58, after the sale in execution had taken place, and that no declaratory suit under O, XXI, Rule 63, was, therefore, competent. An opinion was expressed that it made no difference whether the objections under O. XXI, Rule 58, were made before or after the confirmation of the sale, because when the sale was confirmed the title passed to the auction-purchaser from the date of the sale.
15. As I said before, this appeal falls under the second sub-division of the second class, namely, where the claim petition is made before the date of the sale but disposed of after it took place either on the ground of default of the petitioner or on the ground that the application cannot be heard after the sale. The two decisions of the Calcutta High Court in Gopal Chandra Mukerjee ,v. Notobar Kundu and Sasthi Charon v. Gopal Chandra are similar to the facts of the present case. The decisions relating to the disposal of the application before the sale stand on a different footing, because an order passed in such a case clearly falls under Rule 58, and as such would be governed by Rule 63. But where the order is passed after the sale has been held and proceeds on the ground that the application is not tenable because the attachment has come to an end or that the claim cannot be (adjudicated upon after the sale, the provisions of Rule 63 would have no application.
16. It is urged on behalf of the appellant that the case, where the claim has been advanced before the sale, stands on a different footing from the claim petition preferred after the sale, because in the former case the application having been filed at a time when the attachment was subsisting, the Court was bound to dispose of the application even after the sale was over, and any order disposing of such an application would be an order under Rule 63. But the material date is not the date when the application was filed but, as I have shown above, the date when the Court passes an order on the application. It is then contended that so long as the sale is not made absolute, it cannot be said that the sale proceedings are over and that therefore the Court can pass an order on the merits before the sale is made absolute. It is true that after the sale is held, it is liable to be set aside on several grounds within thirty days at the expiration of which it becomes absolute, but the rights under the sale come into existence at its date and not when it is made absolute, and the claim is to be disposed of before the right of the auction-purchaser begins from the date of the sale. I think the reasoning of the Calcutta decisions is correct and I prefer to follow them and hold that where an order is passed by the executing Court even within one month after the sale actually took place to the effect that the Court had no jurisdiction to pass any order on the merits on the claim petition and dismisses it on that ground, it does not fall under O. XXI, Rule 63, of the Civil Procedure Code. Moreover Rule 63 states that subject to the result of the suit the order shall be conclusive. That means that the order 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: see Najimunnessa Bibi V. Nacharuddin Smdar (1923) I.L.R. 51 Cal. 548.
17. For all these reasons I am of the opinion that the order of the executing Court in the present case being not governed by the provisions of O. XXI, Rule 63, it was not necessary for defendant No. 4 to bring a suit within one year to establish his claim.
18. The decision of the lower appellate Court is confirmed and the appeal is dismissed with costs.