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Smt. Shakuntalabai Vasantrao Khatavkar Vs. Eknath Vishnu Aundhkar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 136 of 1970
Judge
Reported in(1979)81BOMLR79
AppellantSmt. Shakuntalabai Vasantrao Khatavkar
RespondentEknath Vishnu Aundhkar
DispositionAppeal dismissed
Excerpt:
.....procedure code (act v of 1908), order xxi, rules 63,103 and 58 - limitation act (xxxvi of 1963), article 98-limitation for a suit by a person against whom an order referred to in order xxi, rule 63 has been made to establish the right which he claims to property comprised in the order.;the plaintiff, wife of defendant no. 2, filed an application under order xxi, rule 63 of the civil procedure code, 1908, on november 11, 1963 to set aside an attachment of the suit property (houses and open site) in execution of a decree obtained by defendant no, 1 against defendant no. 2, and purchased by defendant no. 3. the plaintiff contended that the houses and site had been purchased by her in june 1961. the application was dismissed for default on february 24, 1964. on march 5, 1964 she applied..........the code required some investigation to be made, is gone. rule 63 of the present civil procedure code and article 11 of the present limitation act are quite general in their terms. all that is now necessary is that a claim should be preferred under rule 58 and that there should be an order either allowing or rejecting it. the party against whom the order is made may then bring a suit in the language of rule 63 'to establish the right which he claims to the property in dispute' or in the language of article 11 'to establish the right which he claims to the property comprised in the order' and the suit must be brought within the year allowed by article 11.the division bench thus took the view that where a claim is preferred under order xxi, rule 58 of the civil procedure code and an.....
Judgment:

Chandurkar, J.

1. This appeal by the unsuccessful plaintiff, whose suit under Order XXI, Rule 63 of the Code of Civil Procedure has been dismissed by both the Courts, must be dismissed on the short ground that the suit filed by the appellant was barred by limitation.

2. The plaintiff is the wife of defendant No. 2. Defendant No. I had obtained a money-decree against defendant No. 2 in execution of which the suit property consisting of houses and open site were attached and sold and purchased by defendant No. 3. The plaintiff's objection to the attachment and sale was rejected and she, therefore, filed the suit under Order XXI, Rule 63 alleging that the suit houses and the open site were purchased by her from her husband on June 30, 1961. Two main grounds on which the suit was contested were that the alleged sale in favour of the plaintiff by her husband was a fraudulent transfer intended to defeat the creditor and that the suit was barred by limitation, The trial Court held that the plaintiff had got her name recorded only seven days prior to the date of attachment and the evidence of consideration was incredible. Further according to the trial Court, the transfer was a fraudulent one within the meaning of Section 53 of the Transfer of Property Act. It was also held that the sale-deed was sham and bogus. With regard to limitation it was found that the application to set aside the attachment was made on November 11, 1963 but that the application came to be dismissed in default on February 24, 1964. The suit was filed on March 24, 1965. Therefore, it was held that the suit was barred by limitation in view of Article 98 of the Limitation Act, 1963. It appears that it was contended that it was the case of the plaintiff that she had applied for restoration of the application to set aside the attachment on March 5, 1964 but that that application was dismissed for default on September 19, 1964 and her appeal filed against that order also came to be dismissed for default on January 9, 1965. According to the plaintiff, the limitation must be said to have commenced from September 19, 1964 when the application for restoration itself came to be dismissed for default. This contention was, however, rejected. The plaintiff's suit thus came to be dismissed. In appeal the learned Assistant Judge, Sangli, held that the transaction in favour of the plaintiff was hit by Section 53 of the Transfer of Property Act and that the suit was also barred by limitation. The plaintiff has now filed this second appeal.

3. The argument that was advanced in; the Courts below that limitation for the suit under Order XXI, Rule 63 would commence from September 19, 1964 was advanced before me also. However, in view of the clear words in Article 98 of the Limitation Act, 1963, the argument must be rejected. Article 98 prescribes limitation for a suit by a person against whom an order referred to in Rule 63 or in Rule 103 of Order XXI of the Code of Civil Procedure has been made to establish the right which he claims to the property comprised in the order. The period of limitation prescribed is one year and the time from which period begins to run is stated as date of the final order. The final order which is contemplated by Article 98 is the order referred to in Rule 63 or in Rule 103 of Order XXI, the latter of which is not material for the present purpose. Rule 63 of Order XXI refers to an order against a party who has made a claim or has preferred an objection. Therefore, the order which is contemplated by the third column of Article 98 is the order in proceedings under Order XXI, Rule 58. The order so far as the present proceedings are concerned would be the order on the application to set aside the attachment. That was dismissed in default on February 24, 1964. An order dismissing the application for restoration is not an order on the application to set aside the attachment. It is obvious, therefore, that the final order on the application to set aside attachment which was made by the plaintiff on November 11, 1963 was the order of dismissal for default on February 24, 1964. The limitation was, therefore, rightly held to have commenced from February 24, 1964. The suit filed on March 24, 1965 was clearly filed beyond one year from that date and was,, therefore, clearly barred by limitation.

4. Article 11 of Schedule I of the Limitation Act of 1908 was the provision parallel to Article 98 of the Limitation Act, 1963, and a question similar to the one which arises in the instant case fell for consideration before a division Bench of the Calcutta High Court in Nagendra Lal Chowdhury v. Fani Bhusan Das ILR(1918) Cal. 785. In that case a claim preferred under Order XXI, Rule 58, Civil Procedure Code, was dismissed for default without any investigation and a suit under Order XXI, Rule 63, Civil Procedure Code, was instituted more than a year after the claim was rejected. The plaintiff's contention:' in that case was that the claim having been rejected for default and without investigation the order of rejection was not an order as contemplated by Order XXI, Rule 63, Civil Procedure Code, and that Article 11 of the Limitation Act, 1908, had no application. This argument was accepted and both the lower Courts decreed the suit and defendant No. 1 filed a second appeal before the High Court. The division Bench of the Calcutta High Court referred to the changes made in Order XXI, Rule 63 as compared with Section 283 of the Code of 1882 which was the parallel provision in that Code. Section 283 of the Code of 1882 ran as follows:

The party against whom an order under sections 280, 281, or 282 is passed may institute a suit to establish the right which he claims to the property in dispute.

Comparing the provisions of Rule 63 of Order XXI the division Bench observed as follows (p. 790):

. . .Rule 63 on, the other hand 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.' The specific reference to the previous sections or rules has been omitted. A corresponding change has been made in Article 11. The ground therefore on which the cases under the previous Limitation Act and the previous Code were decided, that the sections specifically referred to in Article 11 and in section 283 of the Code required some investigation to be made, is gone. Rule 63 of the present Civil Procedure Code and Article 11 of the present Limitation Act are quite general in their terms. All that is now necessary is that a claim should be preferred under rule 58 and that there should be an order either allowing or rejecting it. The party against whom the order is made may then bring a suit in the language of rule 63 'to establish the right which he claims to the property in dispute' or in the language of Article 11 'to establish the right which he claims to the property comprised in the order' and the suit must be brought within the year allowed by Article 11.

The division Bench thus took the view that where a claim is preferred under Order XXI, Rule 58 of the Civil Procedure Code and an order is passed either allowing or rejecting it, the party against whom the order is made irrespective of whether any investigation took place or not must bring the suit to establish the right which he claims to the property in dispute within one year from the date of rejection of that claim. The division Bench also referred to two decisions of the Madras High Court in Narasimha Chetti v. Vijiapala Nainar (1914) 27 I.C. 944 and Ponnusarni Pillai v. Samu Ammal : (1916)31MLJ247 in which the Madras High Court had pointed out that the language of Article 11 of the Limitation Act, 1908, was more comprehensive than the language of the preceding Act and it refused to restrict the Article to those cases in which an investigation had taken place.

5. This view of the Calcutta High Court was affirmed by a Full Bench of five Judges of that Court in Haripada (Herman) v. Surendra Nath Samantha AIR[1922] Cal. 164 where it was held that the dismissal of an objection under Order XXI, Rule 58 of the Civil Procedure Code even for default will bar a suit which is brought beyond a year of such dismissal.

6. In Cannanore Bank v. Madhavi AIR[1942] Mad. 41, it was held that even an order of dismissal for default of an objection under Order XXI, Rule 58 will fall within Rule 63 of Order XXI, Civil Procedure Code.

7. Both the Courts were, therefore, right in holding that the plaintiff's suit was barred by limitation. In view of the fact that the suit itself was barred by limitation, it is not necessary to go into other questions raised in this second appeal. This appeal must, therefore, fail and is dismissed with costs.


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