Skip to content


Laxmidevi and ors. Vs. the Firm of Prakash and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 148 of 1985
Judge
Reported inAIR1987Kant32; ILR1985KAR3087
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 and 63; Code of Civil Procedure (CPC), (Amendment) Act, 1976 - Sections 97(2); General Clauses Act, 1897 - Sections 6
AppellantLaxmidevi and ors.
RespondentThe Firm of Prakash and Co. and anr.
Advocates:V.S. Gunjal, Adv.
Excerpt:
.....the court to regard the order by which the petitioners' claim was adjudicated upon in that manner, had led it to hold the issue relating to maintainability of the suit against the petitioners......a suit, continue to exist. 5. in the said view, the order of the court by which the petitioners' claim to attachment is adjudicated upon, has to be regarded as an -adjudication made under r. 58 of o.21 of the code, as it stood before its substitution by the amendment act, and respondent-it's suit now filed in the court, being aggrieved against such adjudication, has to be regarded as one instituted under r. 63 of 0. 21 of the code, as it stood before its repeal by the amendment act. if that be so, the court's order under revision by which the issue relating to maintainability of respondent-it's suit under r. 63 of the code, is held in the affirmative, becomes unassailable.6. in the result, this revision petition is liable to be dismissed without being admitted and it is ordered.....
Judgment:
ORDER

1. In a suit of respondent I here, a partnership firm, instituted in the Court of Civil Judge at Bellary (for short 'the Court') against respondent-2 here, for recovery of certain money, an attachment before judgment of certain immovable property had been made on 6-6-1974. That suit having been decreed subsequently, the immovable property, which had been attached therein, was ordered to be sold on 21-1-1980 by the Court, in executing that decree. Thereafter, petitioners here preferred a claim in the Court respecting the said immovable property. That claim was upheld by the Court's order dt. 194-1983. That order having gone against respondent another suit, 0. S. No. 127 of 1983, was instituted by it in the Court purport in to be under R. 63 of 0. 21 of the Code of Civil Procedure, 1908 (for short the Code'), as that rule stood before its repeal by the Code of Civil Procedure (Amendment) Act, 1976 (for short the Amendment Act'). A preliminary. issue raised in the latter suit respecting its maintainability was considered by the Court at the instance of the petitioners, but was held against them by its order dt. 129-1984. The validity of that order is questioned by the petitioners (defendants in the suit) in this revision petition.

2. Shri V. S. Gunjal, learned Counsel for the petitioners, contended that the Court was in error in holding that R. 58 of 0. 21 of the Code, as it stood before its substitution by S. 72 of the Amendment Act, is the provision under which the petitioners claim had been adjudicated upon and it is this error which had made the Court conclude that the order by which the petitioners' claim was adjudicated upon, was not an appeal able decree. It was his contention that the Court should have regarded the order adjudicating the petitioners' claim as one made under R. 58 of 0. 21 of the Code as it stood substituted by the Amendment Act and, hence, as an appeal able decree. It was his further contention that failure of the Court to regard the order by which the petitioners' claim was adjudicated upon in that manner, had led it to hold the issue relating to maintainability of the suit against the petitioners.

3. Petitioners' claim adjudicated upon and the suit instituted by respondent-] in the Court pursuant to such adjudication, concerns an immovable property which was admittedly attached under R. 54 of O.21 of the Code on 6-6-1974. And that attachment subsisted immediately before S. 72 of the Amendment Act came into force on 1-2-1977 substituting new R. 58 in the place of older. 58 of O.21 of the Code. If new R. 58 was applicable to adjudication of the petitioners' claim relating to attached immovable property, undoubtedly the contentions of Shri Gunjal directed against the order under revision would have merited acceptance. But, sub-sec. (2)(q) of S. 97 of the Amendment Act comes in the way and leads to a different result.

4. Sub-section (2) of S. 97 of the Amendment Act in so far as it is material, reads:

'(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-sec. (1) has taken effect, and without prejudice to the generality of S. 6 of the G.C. Act, 1897,

(a) ..............................................................

(q) The provisions of Rules 57 to 59...........of 0. XXI of the First Schedule as amended or, as the case may be, substituted or inserted by S. 72 of this Act, shall not apply to or affect

(i)Any attachment subsisting immediately before the commencement of the said S. 72, or

(ii) ..........................'

While Cl. (q) above expressly makes new R. 58, among others, inapplicable and inoperative respecting attachment of property already made and subsisting immediately before the commencement of S. 72 of the Amendment Act, to wit, before 1-2-1977. Subsec. (2) above states in clear terms that the operation of S. 6 of the GC Act, 1897, is not affected, implying thereby that the provisions of the Code as they stood before the coming into force of the Amendment Act, to enforce any remedy relating to liability incurred under the repealed provisions of the Code, are still available. From this it follows that R. 58 and R. 63 of the Code, as they stood before the coming into force of the Amended Act, providing respectively for summary adjudication of a claim respecting an attachment made under R. 54 of the Code before 1-2-1977 and for a party aggrieved by such adjudication to file a suit, continue to exist.

5. In the said view, the order of the Court by which the petitioners' claim to attachment is adjudicated upon, has to be regarded as an -adjudication made under R. 58 of O.21 of the Code, as it stood before its substitution by the Amendment Act, and respondent-It's suit now filed in the Court, being aggrieved against such adjudication, has to be regarded as one instituted under R. 63 of 0. 21 of the Code, as it stood before its repeal by the Amendment Act. If that be so, the Court's order under revision by which the issue relating to maintainability of respondent-It's suit under R. 63 of the Code, is held in the affirmative, becomes unassailable.

6. In the result, this revision petition is liable to be dismissed without being admitted and it is ordered accordingly.

7. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //