Sreenivasa Rau, Offg. C.J.
1. This second appeal arises from a suit brought by respondent I against the Appellant and respondent-2 for a declaration that the suit property which is a land with a house standing thereon was the property of defendant 2 (Respondent-2) as it had devolved on him by inheritance from his mother, that the statement alleged to have been given by defendant-2's mother for the transfers of the property to the name of defendant-1 (Appellant) without consideration was fraudulent and that the property was liable for attachment and sale in execution of the decree in Civil Suit No. 182 of 1947 obtained by the plaintiff against defendant-2. The plaint was later amended by adding a prayer for a permanent injunction restraining defendant-1 from obstructing the plaintiff from executing the abovementioned decree. Defendant-1 resisted the suit contending that defendant 2, had never had any interest in the property, that the transfer made to her name by her mother-in-law was valid and bona fide, that the suit was not maintainable and that it was barred by limitation.
Defendant-2 supported her contending that he had no interest in the suit property which was the (sic) property of his mother who, not desiring that the property should go either to him or her daughter or her daughter's son, made it over to her daughter-in-law, and that it was a bona fide transaction. He further contended that even if the transfer in favour of defendant-1 had not been effected be (defendant-2) would not have inherited the property. The learned trial Judge held that there was no effective transfer of the property as the gift was not made by a registered instrument, that defendant-2 was the sole heir of his mother and became the owner of the property on his mother's death, that the suit was maintainable under Section 42 of the Specific Relief Act and that it was sot barred by limitation. He accordingly made a decree declaring that the suit property belonged to defendant-2 and that it was liable to be attached and sold in execution of the plaintiff's decree in G. S. No. 182 of 1947 and restraining defendant 1 from obstructing the plaintiff in executing her decree as against the suit property.
2. On appeal by defendant 1, this decision, was confirmed by the appellate Court below except for the modification that the declaration in regard to the liability of the property for attachment was deleted since it had already been attached before judgment in the earlier suit. Defendant 1 has preferred this second appeal against the concurrent decision of the Courts below.
3. The game contentions as in the Courts below have been urged here. It is clear that defendant 1 obtained no right to the suit property since the transfer by her mother-in-law was not effected by a registered instrument and even assuming that defendant I was in exclusive possession of the property in her own right, from the date of the gift, the present suit was filed within 12 years from the date of the alleged gift, namely, 30-5-1947 and defendant 1 could not claim to have perfected her ownership by adverse possession, nor indeed did she put forward any such case. As regards the character of the transfer the Courts below have come to the conclusion, that it was not a bona fide one. This is a concurrent finding of fact and does not call for interference. It is certainly borne out by the material on record.
The alleged statement by defendant 2's mother, a copy of which is marked Ex. 28, purports to have been addressed by her to the inhabitants xzkeLFk: of Honavar village. I am told that the word is used in the sense of village officer. All that it states is that the suit property which was standing in her name should be entered in her daughter-in-law's name. Defendant 2 has stated in the course of his evidence that the Shanbhogue village officer did not take any statement from his mother, that it was his wife who took the statement to the Gramasthas and that one Bhat from Udipi wrote the Patrika (statement). The plaintiff's suit was pending at that time, or about to be filed. Defendant-2's mother died on 3-6-1947, i.e., four days after the statement and the entry in the name of defendant-1 in the revenue register appears to have been got made on 10-6-1947. The plaintiff appears to have had the attachment before judgment of the property effected on nth June 1947. It cannot be said that the Courts below were not warranted in holding on the basis of these circumstances that the alleged transfer in favour of defendant-1 was not bona fide.
4. But it is contended on behalf of the Appellant that even then defendant-2 did not inherit the property as his mother left a daughter surviving her. On this point also the two Courts below have held that the Appellant has not established that circumstance. In addition to the evidence of defendant-2 on this point one Ganapathi was examined for defendant-2. The sister's name was not mentioned in the written statement, nor was any extract relating to her birth or death produced. While defendant-2 stated that his sister died after his mother's death, Ganapathi states that his mother died prior to his grandmother. Further, while defendant-2 states that his sister's name was Phandi, Ganapathi states that her name was Rukmini and that she was not called by any other name. In this state of evidence the Courts below were entirely justified in coming to the conclusion that defendant 2's mother left no daughter behind her and consequently defendant 2 became her sole heir on her death and the suit property devolved on him since the alleged transfer in favour of his wife was totally ineffective.
5. The next and the most important contention urged for the Appellant is that the suit for a declaration was not maintainable. In this connection the circumstances under which the suit was filed may be mentioned. The previous suit filed by the plaintiff against defendant 2 was for the recovery of money and was decreed on 16-11-1949. The plaintiff sued out execution and sought attachment of defendant 2's moveables. When the bailiff went to the house of respondent 2 (defendant 2) to effect the attachment of moveables, defendant 1 offered obstruction to the entry of the bailiff stating that the house belonged to her and not to her husband. The attachment warrant was returned with an endorsement of non-execution. The decree-holder (present plaintiff) applied for the removal of the obstruction caused by the judgment-debtor's wife (present defendant 1). That application was dismissed on 3-2-1953.
Thereafter the present suit was filed. It is stated in the plaint that as defendant 1 at the lime of the execution of the warrant for the attachment of the moveable property contended that the house was hers, she was asking for a declaration that the property belonged to defendant 2 and was liable for attachment and sale in execution of her decree against defendant 2. The Appellant's contention is that under Section 42 of the Specific Relief Act it is only when the plaintiff claims a right in the property in question that she can seek a declaration of such right and not when, as in the present case, she seeks really a declaration of the right of another person to the property, namely the right of defendant 2 as owner. It is also contended for the Appellant that the suit comes under the mischief of the proviso to Section 42, since even the consequential relief which was belatedly claimed by way of amendment was a colourable attempt to evade the proviso and such a relief would be redundant if the relief for declaration were granted. Section 42 of the Specific Relief Act reads as follows :-
'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and, the plaintiff need not in such suit ask for any further relief:'
'Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'
It will be noticed that the wording used is 'Any person entitled to any legal character or to any right as to any property'. While it is contended for the Appellant that the 'right as to property' is the same as 'right to property', it is urged for the Respondents that the right claimed by the plaintiff need not be in the property in question though it should relate to such property and that in the present case the right claimed by the plaintiff in relation to the property is the right to bring it to sale in execution of her decree as the property of defendant 2. A further contention urged for the Appellant is that the only way in which a decree-holder can agitate such a question in relation to property sought to be attached and sold is under the relevant provisions of the Code of Civil Procedure. Finally it is urged for the Appellant that even if a suit for declaration is maintainable, the relief being discretionary it should not be granted when the plaintiff has failed to resort to the remedies specifically provided for a contingency like the one on hand.
On the other side it is urged that the provisions of the Code of Civil Procedure do not represent the sole course open to a decree-holder to get his way clear for the attachment and sale of property belonging to the judgment-debtor and that it would be entirely appropriate for the Court to exercise its discretion in a case like the present one instead of driving the plaintiff to bring the property to sale when the existing circumstances clearly indicated that efforts would be made by defendants 1 and 2 to frustrate the sale. It is also con-tended that the consequential relief is not colourable but a substantial one.
6. The questions involved are not free from difficulty. A number of decisions have been cited at the Bar and I shall proceed to examine some of them.
7. In Maung Ba Kyaw v. U Lan 45 Ind Cas 972 : (AIR 1918 Low Bur 113) it was held by the Lower Burma Chief Court that independently of the provisions of Order XXI, Rule 63 of the Civil Procedure Code, a decree-holder may sue for a declaration that certain property attached in execution of his decree belongs to the judgment-debtor, although at the time of the suit the attachment might have been withdrawn and the property may not be in the possession of the decree-holder. It was further held that to such a suit the proviso to Section 42 of the Specific Relief Act does act apply. The following observations in an earlier case, Allagappa Chetty v. Nazamatali Chowdhry, 4 Low Bur Rul 263, were quoted with approval:
'I can see no reason for making any distinction between the mode in which plaintiff must establish his right if he has previously applied for a summary order and the mode in which he must establish his right if he has not applied for a summary order. In either case a declaration is sufficient. When plaintiff obtains a declaration, the Court which executed the decree must respect the declaration and give restitution ......... The object of the proviso is to prevent a plaintiff from getting a declaration in one suit, and consequential relief afterwards in another. Here there is no need for any subsequent suit.'
The former proposition does not appear to have been disputed though the learned Judge cited some decisions in support of it. As regards the question of consequential relief with which the proviso to Section 42 of the Specific Relief Act deals, the learned Judge was of the view that in the very circumstances of a suit for declaration in respect of the judgment-debtor's right to property sought to be attached or under attachment, no consequential relief would be needed since the declaration itself would have the effect of removing the bar to attachment and sale and the execution could proceed. It seems to me that this correctly represents the position and irrespective of whether in the present case the consequential relief prayed for by way of an injunction against defendant 1 restraining her from obstructing the plaintiff from execution of her decree was a colourable or a substantial one, no consequential relief was necessary or called for and that the proviso has no application to the case. In other words the suit would be maintainable without asking for any consequential relief provided it was otherwise maintainable, i. e., under the main part of Section 42 Specific Relief Act, or otherwise.
8. In Firm K. R. M. A. v. Mg. Po Thein, AIR 1926 Rang 124 a Bench of the same High Court held that a suit under Order 21, Rule 63 of the Code of Civil Procedure is intended to be the sole remedy of a decree-holder whose claim to attach property has been disputed, but that there is an essential difference between the person who is claiming a declaration of his own right and that of a decree-holder who claims a declaration of the right of a judgment-debtor and that Section 42 of the Specific Relief Act ought not to be interpreted to cover the case of such a decree-holder, since he does not claim any right of his own in the property and a remedy has been provided for him by the procedure under Order 21, Code of Civil Procedure. They took the view that relief by way of a declaratory decree is a creature of statute and is available only under Section 42 of the Specific Relief Act. The observations in regard to the availability of remedies under Order 21 to the decree-holder clearly show that the learned Judges were not of the view that Section 42 of the Specific Relief Act would not be applicable to such a case, but that the exercise of the discretion under that provision would be a wrong exercise in the face of the availability of a specific remedy under the Code of Civil Procedure.
9. A Full Bench of the same High Court held in Maung Ba Maung v. Maung Ba Yin, AIR 1939 Rang 332 (FB) that a judgment-creditor cannot sue under Section 42 of the Specific Relief Act for a bare declaration that a transfer has been made by the judgment-debtor fraudulently with intent to defeat or delay his creditors, since the right of the creditor to attach the property of his judgment-debtor is a mere procedural right conferred by the Code of Civil Procedure and is not a substantive right as to the property and therefore cannot give rise to a right of suit under Section 42. It may be mentioned that this judgment does not refer to the earlier decision of the Bombay High Court in Jamnabai v. Dattatraya, AIR 1936 Bom 160 where a contrary view was taken on the strength of the words 'any right as to any property' occurring under Section 42 of the Specific Relief Act, the words not being 'and right to any property'.
10. In Mulkh Raj v. Firm Rala Ram-Rao Mal, AIR 1926 Lah 348 it was held that it was not open to a decree-holder to withdraw the attachment himself and then to bring a suit under Rule 63, of Order 21, Code of Civil Procedure, since that rule contemplates that the attachment was objected to and that the objector's claim was accepted or disallowed by the executing Court. Incidentally an observation is made to the effect that Rule 63 precludes all suits but the one under the rule itself and therefore no suit under any other provision of law is competent. This observation is not supported by any discussion or reasoning. Presumably the suit was brought by the decree-holders purporting to be under Order 21, Rule 63, Code of Civil Procedure, and clearly such a suit was not maintainable. Since that was the only question for decision any observations relating to the maintainability of a suit under any other provision of law were not necessary for the decision.
11. AIR 1936 Bom 160 arose from a suit filed in the following circumstances. The holder of a money decree filed an execution petition to recover the decretal amount by the sale of a house standing in the name of the judgment-debtor's wife on the ground that the judgment-debtor was the real owner. The house was attached and the wife objected to the attachment under Order 21, Rule 58 Civil Procedure Code, whereupon the' decree-holder, withdrew the attachment and filed a suit asking for a declaration that the house belonged to the judgment-debtor and was purchased benami in the name of his wife and that it was liable to attachment and sale in execution of his decree. On the contention advanced on behalf of the wife that the case did not fall within Section 42 of the Specific Relief Act, the learned Chief Justice observed as follows :
'It is well established that the right to make a declaratory order is statutory; and this case must be brought within Section 42, Specific Relief Act, if a declaration is to be made. Now, that section, so far as material, provides that :
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled.
It is argued by the appellant that the plaintiff has not any right as to the property in question. Now, I agree that if the words in the section were 'any right to any property', the argument would be unanswerable, because the plaintiff whose claim is merely that of an execution-creditor has at present no right to the property. The question, however, is whether he has any right as to the property. The right which the plaintiff claims is a right to attach the property; and it seems to me that a right to attach particular property is a right as to that property.'
On the question of the exercise of discretionary power, the learned Chief Justice says :
'If in the exercise of my discretion I refuse to make a declaratory order here, it would be open to the plaintiff to attach the property again; defendant 2 would again raise her objection; the execution Court would probably refuse to deal with the matter; and the parties would then have to bring another suit of exactly the same nature as the present suit. I do not think that any useful purpose will be served by putting the parties to so much expense and delay.'
12. In the case reported in Askari Begam v. Ballabh Das, AIR 1938 Oudh 165, the learned Judges also took the same view citing the Bombay decision with approval.
13. In the decision reported in Krishnaveni Ammal v. Soundararajan : AIR1945Mad53 , while holding that Section 42 of the Specific Relief Act is not exhaustive in regard to declaratory reliefs it was observed that a suit by a creditor for a declaration that certain transfers made by the debtor to his wife and daughter were benami and fictitious does not come within the purview of Section 42 nor is it maintainable apart from the provisions of Section 42 because the plaintiff is clothed with neither any legal character nor title to the suit property. They cited with approval the Full Bench decision of the Rangoon High Court referred to above, i. e., AIR 1939 Rang 332. But as in the Rangoon case in this case also there is no reference to the Bombay decision (AIR 1936 Bom 160).
14. On a consideration of the above decisions, and the discussion found in them, it seems to me that Section 42 of the Specific Relief Act enables a person to bring a suit like the present one. I agree with respect with the view expressed in AIR 1936 Bom 160 that the employment of the phrase 'any right as to any property' shows that it is not necessary for the plaintiff to claim any right in the property itself. It is enough if the right he claims relates to the property in question. It is no doubt true that the right claimed by a decree-holder in a suit like the present one is a procedural right granted to him under the provisions of the Code of Civil Procedure. But so long as such a right relates to any property there is no reason to hold that it does not come within the purview of Section 42, though undoubtedly it is a matter for the discretion of the Court and that discretion has to be very carefully exercised. I would go even further and say that normally when another specific remedy is open, the Courts should not exercise the discretion given by Section 42 unless the interests of justice require the use of the discretion.
In most cases a decree-holder seeking to proceed against any property as belonging to the judgment-debtor can attach it and bring it to sale. If any person other than the judgment-debtor claims interest in it, such a person may normally be expected to put forward his claim under Order 21 Rule 58, Code of Civil Procedure and it would be for the Court to give its decision on the claim within the narrow purview of the provisions of Rules 58 to 62 of Order 21, Code of Civil Procedure. If the decision is against the decree-holder he can and, indeed, has to bring a suit under Rule 63, which provides for a declaratory suit. If, when these provisions are available, the Court should as a matter of course allow decree-holders to bring declaratory suits with the aim of establishing the liability of property on the ground that it belongs to the judgment-debtor, it would lead to harassment of third parties who may be the real owners of the items of property sought to be proceeded against. But these considerations can only have a bearing on the care with which the discretion should be exercised.
15. In the present case the decree-holder had sought attachment of moveables and while the warrant for their attachment was being executed, defendant 1 proclaimed her right to the immovable property which had already been under attachment. The stage for the preferment of any claim by defendant No. 2 has passed since some six years had elapsed after the attachment. The next step for the decree-holder to take was to bring the land and the house to sale. If the sale were held, it was almost certain that the purchaser would be met with defendant. 1's obstruction to possession in view of her declaration of ownership of this property at the time of attachment of moveables. The decree-holder was therefore well warranted in filing the present suit for clearing the way to the execution of her decree instead of having to face the threatened contingencies mentioned above. It should also be mentioned that the summary order on the decree-holder's application for the removal of the obstruction to the attachment of moveables could reasonably be held to foreshadow what awaited the prospective purchaser of the attached property when in his turn he was obstructed while obtaining possession of the property and applied for the removal of obstruction.
It seems to me, bearing all these factors in mind, that this is clearly a case which warranted the exercise of discretion under Section 42 of the Specific Relief Act. In the view I have taken on the above point it does not appear to me to be necessary to consider the question whether Section 42 of the Specific Relief Act is exhaustive of the Court's powers to grant relief of a declaratory character as held in some decisions, for example, Kishori Lal v. Beg Raj, or that it is not exhaustive as held in other decisions, e.g., Srikrishna Chandra v. Mahabir Prasad, AIR 1933 All 488 (FB) and Andhra University v. Durga Lakshmi, : AIR1951Mad870 . This is apart, from the observations contained on this point in the cases already referred to above, for example, AIR 1936 Bom 160.
16. The only question that remains is that of limitation. The Appellant contends that the cause of action for the suit arose when the property was transferred to defendant-1 by her mother-in-law, or at any rate when it was recorded in her name and as more than six years had elapsed by then the suit was barred by limitation. Reliance is placed upon the decision reported in Bank of Upper India v. Mt. Hira Kuer, AIR 1937 Oudh 291, A perusal of that case shows that the decision of the settlement Court itself was the source of the right in question and would stand unless set aside by a civil Court. That is not the position in this case. It is clear that the cause of action arose when defendant-1 denied the plaintiff's right to bring 'the property to sale and in that view no question of limitation arises.
17. The result is that the appeal fails and is dismissed with costs.