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Bhimappa Golappa Vs. Silemansaheb Kasimsaheb - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Number 158 of 1972
Judge
Reported inAIR1976Kant239; ILR1976KAR829; 1976(1)KarLJ228
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rules 58 and 63
AppellantBhimappa Golappa
RespondentSilemansaheb Kasimsaheb
Appellant AdvocateS.D. Chhattre, Adv.
Respondent AdvocateY.A. Dambal, Adv.
Excerpt:
.....property or contending that the claimant continued to be the owner of the property till the time of his death in spite of the claimant's failure to get the order in the claim case set aside. maharaj rup chand). a division bedc11 of the allahabad high court has held that where a claim or objection is preferred by a mortgagee under rule 58 and the, court disallows the objection owing to default of the mortgagee to produce the mortgage deed in time, the unsuccessful objector comes within the words 'the party against whom the order is made......a, no. 251 of 1968 modifying the decree passed by the court of the additional munsiff, bijapur, in civil suit no. 172 of 1965. the respondent instituted the suit for declaration of title to the suit property and for possession of the same. the suit properties are portions of original s. no. 17 of torvi village which has been subdivided into s. nos. 17/1 and 17/2.2. the respondent filed small cause suit no. 295 of 1950 against gurunath and. obtained a money decree against him. after two infructuous execution proceedings, the respondent filed darkbast no. 29 of 1961 and got the lands s. nos 17 and is attached on 10th april, 1961. these lands were sold in execution of the decree and the respondent himself purchased the same on 4th june, 1962. as the application of the respondent to remove.....
Judgment:

1. This second appeal is by the legal representative of the original 3rd defendant against the decree passed by the Additional Civil judge, Bijapur, in R. A, No. 251 of 1968 modifying the decree passed by the court of the Additional Munsiff, Bijapur, in Civil Suit No. 172 of 1965. The respondent instituted the suit for declaration of title to the suit property and for possession of the same. The suit properties are portions of original S. No. 17 of Torvi Village which has been subdivided into S. Nos. 17/1 and 17/2.

2. The respondent filed Small Cause Suit No. 295 of 1950 against Gurunath and. obtained a money decree against him. After two infructuous execution proceedings, the respondent filed Darkbast No. 29 of 1961 and got the lands S. Nos 17 and IS attached on 10th April, 1961. These lands were sold in execution of the decree and the respondent himself purchased the same on 4th June, 1962. As the application of the respondent to remove obstruction offered by Gurunath was dismissed, the plaintiff instituted the present suit

*(Against judgment and decree passed by Addl. Civil J., Bijapur. Appeal No. 251 of 1968. D/- 8-11-1917 ).

within one year from the date of the dismissal of the said application. The suit was resisted so far as the land S. No. 17/2 with which alone we are concerned in this appeal on the ground that the same having been alienated by Gurunath in favour of defendant-3 long before the same was attached in Darkbast No. 29 of 1961, no title has passed in favour of the respondent in respect of the land S. No. 17/2. The suit in respect of S. Nos. 17/1 and 17/2 was dismissed by the court of first instance, As it is unnecessary I have not referred to facts pertaining to land S. No. 17/1. On appeal the learned Civil judge has decreed the suit so far as land S. No. 17/2 is concerned. It is the said decree that is challenged by the legal representative of defendant-3 in this second appeal.

3. The attachment was effected on 10-4-1961 and thereafter defendant-3 made an application on 16-8-1961, i.e., Misc No. 67 of 1961 for raising the attachment. The said application made under Order 21 Rule 58 of the Civil Procedure Code was not investigated on merits and came to be dismissed for default on 2nd February 1962. It is after the dismissal of the said application that the land was sold on 4th June, 1962. The Court below has held that the order of 2nd February, 1962 dismissing the application. of defendant-3 made under Order 21 Rule 58 of the Civil Procedure Code has become conclusive and that therefore defendant-3 is barred by Order 21 Rule 63 of the Civil Procedure Code from asserting, anti establishing that he has title to the suit property and that the same has not passed in favour of the respondent.

4. Sri S. D. Chhatre, learned counsel for the appellant, contended that as the claim made by Gurunath, original defendant-3 in his application under Order 21 Rule 53 of the Civil Procedure Code was not investigated on merits, but was dismissed for default, the bar contained in Order 21 Rule 63 of the Civil Procedure Code is not attracted. In support of the contention of his, he relied upon the decision of the former High Court of Mysore reported in AIR 1954 Mys 142 (Shivapadegowda v. Anniabcbar) justice Mallappa, of the former High Court of Mysore has taken the view that where a claim petition is dismissed for default without investigation nothing comes in the way of the claimant or any person under him laying claim to the property or contending that the claimant continued to be the owner of the property till the time of his death in spite of the claimant's failure to get the order in the claim case set aside. Order 21 Rule 63 of the Civil Procedure Code provides:

'Where a claim or an objection is preferred, the part, 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.'

In order to attract the provisions of Order 21. Rule 63 of the Civil Procedure Code, the following have to be established:-

(1) that a claim or an objection was preferred, and

(2) that an order was made on such claim or objection,

There is nothing, in Order 21 Rule 63 of the Civil Procedure Code to indicate that the rejection of the claim or objection - presented under Order 21 Rule 58 of the Civil Procedure Code should be only after investigation and on merits. The tenor of the language of Order 21 Rule 63 of the Civil Procedure Code makes it clear that the bar contained in the said provision is attracted if the claim or objection preferred under Order 21 Rule 58 of the Civil Procedure Code results in an order being made for or against the party putting forward such a claim or objection. The consensus of the judicial opinion in the Country is consistent with the view which I am inclined to take. The same is the view taken in AIR 1922 Cal 166 (Satindra. Nath v. Shiva Prasad). A Division Bench of the Calcutta High Court has taken the view that an order dismissing a claim for default is an order within the meaning of Order 21, Rule 63 of the Civil Procedure Code, and Subject to the result of a regular suit is conclusive. Similar is the view taken by the Allahabad High Court in : AIR1927All593 (Debi Das v. Maharaj Rup Chand). A Division BeDC11 of the Allahabad High Court has held that where a claim or objection is preferred by a mortgagee under Rule 58 and the, court disallows the objection owing to default of the mortgagee to produce the mortgage deed in time, the unsuccessful objector comes within the words 'the party against whom the order is made.' A full Bench of the Madras High Court has ruled in ILR 41 Mad 985 = (AIR 1919 Mad 738 FB) Venkataratnam v. Ranganayakamina) that an order refusing to investigate a claim to attach property, on the ground that there was delay in filing it, is at-, order, passed 'against' the claimant within Order 21 Rule 0.3, Civil Procedure Code, and Article It of the Limitation Act (IX of 1908) and that order on a claim petition merely stating that, as it was filed late, it will be notified to the bidders is in effect an order rejecting the claim to which the provisions of Order 21 Rule 63 will apply. Similar is the view taken by the Bombay 1-fil-li Court in A111 1933 Bom 190 (Trimbak Tumbuslict v. Zipru Chaturdas).

5. With respect, I agree with the view taken by, the High Courts of Calcutta, Allahabad, Madras and Bombay, referred to above. With great respect, it is not possible to agree with the view taken 3by justice Mallappa in AIR 1954 Mys 142 (Shivapade Gowda v. Armiacbar) for the reasons already stated above. Hence it is not possible to accept the contention of Sri Chhatre that as the order made in Misc. No. 67 of 1961 was made for default, the provisions of Order 21, Rule 63 are not attracted.

6. For the reasons stated above, this appeal fails and the same is dismissed. No costs.

7. Appeal dismissed.


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