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Tilak Shaheen and ors. Vs. Omprakash Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 456 of 1983
Judge
Reported inAIR1986AP16
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 and 63; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72 and 97(2)
AppellantTilak Shaheen and ors.
RespondentOmprakash Gupta and ors.
Appellant AdvocateM.L. Ganu, Adv.
Respondent AdvocateS.V. Ramana Reddy, Adv.
Excerpt:
.....the trial court as well as the first appellate court erred in coming to the conclusion that the suit filed by the appellant herein was not maintainable. 104 of 1976 are clearly applicable and consequently, the appellant could have availed only an appeal against the order of the trial court rejecting the claim petition and could not have availed that remedy under the old act of filing a suit under o. it is therefore contended that the trial court as well as the first appellate court rightly held that the suit filed by the appellant under o. but the difficulty arises in cases like the present one, where though the petition is filed prior to the amendment, the order thereon is subsequent to the coming into force of the amendment act. jeevan reddy, j, was dealing with a case where there..........bearing o. s. a. no. 32 of 1977. a preliminary objection was raised by the defendants that the suit filed by the appellant under o. 21, r. 63 cpc was not maintainable in view of the amending act no. 104 of 1976 of the civil p. c., which came into force on 1-2-1977. it was urged that, according to the amending act, an appeal is provided against the rejection of the claim petition and the procedure, prior to the amendment of filing a suit under o. 21, r. 63, cpc was given up. in that view it was contended that the present suit filed by the appellant under o. 21, r. 62 cpc as it stood prior to the amendment, which came into force on 1-2-1977 was not maintainable and the suit should be dismissed in limine. the trial court considered this objection as a preliminary issue and upheld the.....
Judgment:

1. A short but interesting question of law arises in this appeal regarding the effect of amendment of O. 21, R. 58, CPC by the amending Act No. 104 of 1976 with effect from 1-2-1977. The Ist respondent herein, Omprakash Gupta, filed a suit bearing O. S. No. 843 of 1976 against the 2nd respondent herein Shankarlal, in the court of the IVth Addl. Judge, City Civil Court, Hyderabad for recovery of Rs. 11,000/- and odd. In that suit, an application I. A. No. 1 of 1976 was filed by the Ist respondent for attachment before judgment of the moveable in the premises No. 2-3 belonging to the appellant herein on the ground that the moveables in the said premises belong to the 2nd respondent. Pursuant to the above application, attachment was effected on 3-1-1977.

The appellant then filed a claim petition No. I. A. No. 13 of 1977 under O. 38, R. 8 CPC for release of the property from attachment on the ground that the moveables belonged to her and did not belong to the 2nd respondent. After appropriate enquiry, the court dismissed the claim petition filed by the appellant filed a suit bearing O. S. No. 32 of 1977 seeking to set aside the order passed by the IVth Addl. Judge, City Civil Court, Hyderabad declining to release the property from the attachment. Respondents 1 and 2 herein were the defendants in the above said suit bearing O. S. A. No. 32 of 1977. A preliminary objection was raised by the defendants that the suit filed by the appellant under O. 21, R. 63 CPC was not maintainable in view of the Amending Act No. 104 of 1976 of the Civil P. C., which came into force on 1-2-1977. It was urged that, according to the Amending Act, an Appeal is provided against the rejection of the claim petition and the procedure, prior to the amendment of filing a suit under O. 21, R. 63, CPC was given up. In that view it was contended that the present suit filed by the appellant under O. 21, R. 62 CPC as it stood prior to the amendment, which came into force on 1-2-1977 was not maintainable and the suit should be dismissed in limine. The trial Court considered this objection as a preliminary issue and upheld the contention of the respondents-defendants that the suit was not maintainable. Against the above said judgment of the trial court, an appeal was filed by the appellant herein. The Addl. District Judge, Rangareddy District, upheld the order of the trial court by his judgment dt. 21-3-1983 in A. S. No. 57 of 1982. The judgment of the first appellate court is challenged in this second appeal.

2. Sri M. L. Ganu learned counsel appearing for the appellant, referred to the following crucial dates, which will have a bearing on the determination of the question under consideration in this appeal.

1. Attachment was made in I. A. No. 1821 of 1976 in O. S. No. 843/76 on 3-1-1977

2. Claim petition under O. 21, R. 58 CPC was filed on 17-1-1977

3. Amending Act No. 104 of 1976 came into force on 1-2-1977

4. Claim petition rejected by the court on 4-3-1977

5. O. S. No. 32/77 was filed under O. 21, R. 63 CPC on 28-3-1977.

Sri Ganu urged that from the above particulars, it is clear that the attachment in the present case was made on 3-1-1977 and the claim petition under O. 21, R. 58 CPC was filed on 17-1-1977. Both these dates were before 1-2-1977 when the Amending Act came into force. Shri Ganu invites attention of S. 97 (2) (q) of Amending Act which is in the following terms :-

'2(q). The provisions of Rr. 31, 32, 48-A,57 to 59, 90 and 97 to 103 of O. 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) any suit instituted before such commencement under R. 63 aforesaid to establish right to attached property or under R. 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if he said S. 72 had not come into force'.

Mr. Ganu points out that the attachment in the present case was made on 3-1-1977 prior to the commencement of S. 72 of the Amending Act of 1976 and that the attachment was subsisting at the time when the Amending Act came into force on 1-2-77. It is, therefore, claimed that the amended provisions taking away the right to file a suit and conferring a new right to file an appeal against an order rejecting the claim petition are not applicable in the present case, as not only the attachment was effected prior to 1-2-1977 and it was subsisting on that date, but even the claim petition was filed on 17-1-77 long prior to the commencement of the Amending Act of 1976. According to Sri Ganu, it is immaterial that the claim petition was rejected by the court on 4-3-77 after the coming into force of the Amending Act. The provisions contained in S. 97 (2) (q) (i) contends Sri Ganu, clearly oust the application of the new provisions contained in the Amending Act. In support of his contention, Sri Ganu relied on the following judgment :-

N. Tati Reddy v. Syed Meera Hussaini AIR 1979 Andh Pra 70.

Judgment of Seetharama Reddy, J., in CRP No. 6885 of 1978 dated 10-9-1981, the short note of which appears in (1981) 2 Andh LT 41 (SN)

Judgment of the Division Bench of this court in M. Janikamma v. Vajjula Paradesi AIR 1980 Andh Pra 209

Syndicate Bank v. Rallis India Limited : AIR1979Delhi40 .

Shyamadevi v. Ramjas Rolling Mills : AIR1979All16 , Sri Ganu contends that the trial court as well as the first appellate court erred in coming to the conclusion that the suit filed by the appellant herein was not maintainable.

3. Sri Ramana Reddy, learned counsel appearing for the Ist respondent refutes the claim of Sri Ganu. According to the learned counsel the suit filed by the appellant in O. S. Nos. 32 of 1977 was not maintainable, inasmuch as, according to him, the provisions of the Amending Act No. 104 of 1976 are clearly applicable and consequently, the appellant could have availed only an appeal against the order of the trial Court rejecting the claim petition and could not have availed that remedy under the old Act of filing a suit under O.21, R. 63 CPC. The learned counsel relies on the judgment of Jeevan Reddy, J in B. N. Murthy, v. Co-op Central Bank Ltd. Srikakulam (1978) 2 APLJ 238. Learned counsel pointed out that the decision in the above mentioned case is directly applicable to the present case. Learned counsel contends that the judgment of the Division Bench of this court in Janikamma v. Vajjula Paradesi AIR 1980 Andh Pra 209 did not purport to support the plea urged by Sri Ganu; on the contrary it supports the judgment of Jeevan Reddy, J., and is, therefore, an authority for the proposition that only the provisions of the Amending Act are applicable and not the old Act. Learned counsel contends that S. 97 (2) (q) (i) of the Amending Act refers only to the attachment as such and not to other proceedings originating from the initial act of attachment. If prior to the commencement of the Amending Act, no further proceedings were taken and only an attachment was subsisting, then, the provisions contained in the Allahabad Act would become applicable in view of S. 97 (2) (q) of the Amending Act. Where, however, pursuant to an attachment a claim petition was filed and an order rejecting the claim petition was passed by the court subsequent to the commencement of the Amending Act, it is not saved because other proceedings taken pursuant to the attachment made prior to the commencement of the Amending Act and a decision in the proceedings taken was rendered only after the commencement of the Amending Act on 1-2-1977. The law is existence at the time when the court rendered its decision in all proceedings taken pursuant to an attachment is the law that governs the future rights. In the present case, learned counsel points out, the order rejecting the claim petition was made on 4-3-1977. It was also pointed out that the enquiry into the claim petition itself was made under the Amending Act and not following the summary proceedings under the old Act. Where therefore, the enquiry itself was conducted under the Amending Act, which came into force on 1-2-1977, and the order was passed pursuant to such enquiry the provisions contained in the amending Act are applicable and the right to file an appeal against the order rejecting claim petition subsists. Learned counsel argues that, in view of the above legal position, it was not open to the appellant to file a suit under O. 21, R. 63 CPC as per the provisions contained in the Act prior to amendment. It is also argued that aforesaid construction of S. 97 (2) (q) (i) is inevitable as a consequence of the provisions contained therein.

According to the learned counsel if the expression 'attachment' occurring in sub-clause (i) takes within its sweep not only attachment but also the relevant proceedings taken pursuant to the attachment, then sub-clause (ii) will be rendered meaningless, because it seeks to save any suit instituted before the Commencement of the Amending Act under R. 63 of O. 21 to establish right to attached property or under R. 103 of O. 21 to establish possession. Sri Ramana Reddy points out that, if attachment includes all proceedings originating from the attachment, there is no reason why legislature should have specifically saved the suits instituted before the commencement of the Amending Act under R. 63 or R. 103 of O. 21, because automatically all the suits, which originate from the attachment will be saved under sub-cl (i) itself and there is no need to make a specific provision in sub-cl (ii). Learned Counsel strongly relies on the principles enunciated by Jeevan Reddy, J, in B. N. Murthy v. Co-op Central Bank Limited, Srikakujal (1978) 2 APLJ 238) to show that contextually the provisions in the Amending Act are applicable to the present case. The learned Counsel also contends that the judgment of the Division Bench in M. Janikamma v. Vajjula Paradesi (AIR 1980 Andh Pra 209) supports the same view. It is therefore contended that the trial court as well as the first appellate court rightly held that the suit filed by the appellant under O. 21, R. 63 CPC was not maintainable.

4. On the grounds urged by the counsel for both sides the question narrows down to this whether, by reason of the attachment admittedly effected in this case on 3-1-1977, provisions of S. 97 (2) (q) bring into application the amended provisions or save the provisions prior to the commencement of the Amending Act. There is no dispute that if the amended provisions, which came into force on 1-2-1977 are applicable, the suit filed by the appellant is not maintainable. There is also no dispute that, if the amended provisions are not applicable, the appellant rightly filed the suit following the rejection of the claim petition. The Amending Act has substituted R. 58 altogether, and omitted Rr. 60 and 63. According to sub-rule (4) of the amended Rs. 58, where any claim or objection has been adjudicated upon, the order made thereon shall have same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. The enquiry under R. 58 after amendment ceased to be a summary proceeding and all questions including the questions relating to title also fell to be decided finally in the proceedings relating to the enquiry into the claim petition and the decision thereon is appealable as if it were a decree. The limited enquiry contemplated under the old Rr. 58 to 61 was done away with by the amended provisions. Prior to the amendment, the detailed enquiry into the claim petition could be made only in a suit filed under R. 63, whereas, after the amendment, the enquiry is required to be made on the claim petition itself. The application of the amended provisions, as already pointed out above, is excluded by S. 97 (2) (q) in the circumstances specified therein. It is provided that the provisions of R. 58, inter alia of O. 21, as amended, or as the case may be substituted by S. 72 of the Amending Act shall not apply to or affect any attachment subsisting immediately before the commencement of the said S. 72.

It appears to me that full effect must be given to this provisions. All that is necessary to be seen is whether an attachment was subsisting immediately before the commencement of S. 72, the date of commencement being 1-2-1977. If before 1-2-1977, an attachment was subsisting, then a logical consequence, the provisions contained in the amended R. 58 shall not apply. There appears to be no reason why the above provision should be construed that the amended provisions are ousted from application only in a case where the order on the claim petition was made prior to the commencement of S. 72 of the Amending Act. There is no reference in S. 97 (2) (q) to that effect; to that contrary the reference is to the attachment and irrespective of any other proceeding that may originate from the attachment, which might be in progress at the relevant time. The provisions of S. 97 (2) (q) (i) come in to application once the attachment was subsisting immediately before 1-2-1977. In B. N. Murthy v. Co-op Central Bank Limited, Srikakulam (1978) 2 APLJ 238 Jeevan Reddy J., observed in para 6 of the judgment as under :

'The next question that arises is whether the said amendment is retrospective. If a claim petition is filed before the commencement of the Amendment Act and the order thereon is also pronounced before such amendment undoubtedly it will be governed by the old rules. But the difficulty arises in cases like the present one, where though the petition is filed prior to the amendment, the order thereon is subsequent to the coming into force of the Amendment Act.'

Therefore reference to S. 97 (2) (q) does not show that the date of filing of the claim petition before or after the commencement of the Amendment Act is of any relevance. It does not also show that the date of passing of an order on such claim petition is of any consequence. What is crucial, according to S. 97 (2) (q) (i) is the attachment subsisting immediately before 1-2-1977. If, as a matter of fact, it is found that an attachment was subsisting immediately before 1-2-1977, it appears to me that there is no need to further enquire into the question as to when the claim petition was filed and when the order on the claim petition was made. The later two circumstances according to S. 97 (2) (q) are irrevalent.

Jeevan Reddy, J, was dealing with a case where there appears to be no attachment because the facts do not reveal that there was any attachment prior to 1-2-1977. It is perhaps for this reason obviously that the learned Judge did not refer to the attachment aspect of the matter, but proceeded on certain general principles, relating to the application of an Amending Act either prospectively or retrospectively with reference to the date on which the order complained of is made.

5. Reference may usefully be made to the decision of Narasinga Rao, in T. Tati Reddy v. Shed Meera Hussaini AIR 1979 Andh Pra 70. In that case, there was an attachment effected in Feb. 1976. Pursuant to a notification for the sale of the properties, a claim petition was filed on 18-7-1977, that is to say, after the Amendment Act came into force on 1-2-1977. During, the course of the enquiry into the claim petition, the lower court held that, as the claim petition was filed subsequently to the enforcement of the amendment to the Civil P. C., the provisions of O. 21, R. 58 CPC as amended, would apply and no separate suit could be filed.

While disposing of the revision petition filed against the order of the lower court Narasinga Rao, J., held that the view of the lower court was erroneous. In para 5 of the judgment the learned Judge, observed that, though the claim petition was preferred on 18-7-1977, it was not in dispute that the attachment of the properties in question was made as early as in Feb. 1976. After referring to the amendment to R. 58 by the Amending Act, the learned Judge observed that, with regard to the attachment subsisting before the enforcement of the amended provisions the old provisions of O. 21, R. 58 would continue to apply. In that view, the learned Judge held that a fuller enquiry into the claim petition could be made only in a separate suit to be filed. This is a case where the attachment was subsisting prior to 1-2-1977 and the claim petition was filed subsequent to the commencement of the Amending Act.

6. Reference may also be made to the judgment of the Division Bench of this court in M. Janikamma v. H. Vajjula Prasad AIR 1980 Andh Pra 209. A slightly different question with reference to the Amending Act came up for consideration before the Division Bench in that case. In the definition of 'Decree' under the Amending Act No. 104 of 1976, S. 47 was omitted and as a result thereof, the questions to be decided by the executing court under S. 47 did not come within the meaning of the definition of 'decree'. Consequently an appeal or second appeal under S. 100 CPC does not lie to the High Court. At the most, a revision petition can be filed. The above effect of the amendment was sought to be repelled by referring to S. 97 (2) (a) of the Amending Act making it clear that the amended provisions are not retrospective in effect.

Dealing with that question, the Division Bench held that, though the proceedings were initiated prior to the amendment of the Civil P. C., the judgment of the Subordinate Judge, which was assailed was rendered in the month of Oct. 1977 after the Amended Code came into force. Inasmuch as the order assailed was after 1-2-1977 when the amendment came into force, the provisions contained in the Amending Act were held to be applicable. There is enough guidance in the above decision of this court that the above principle cannot be invoked while interpreting S. 97 (2) (q).

Attention of the Division Bench was invited to the decision of Jeevan Reddy, J., in B. N. Murthy v. Co-op Central Bank Limited, Srikakulam (1978) 2 APLJ 238. After referring to the decision of Jeevan Reddy J, the Division Bench also referred to the decision of N. Tati Reddy v. Syed Meera Hussaini AIR 1979 Andh Pra 70 on which the counsel for the appellant relied for the proposition that the provisions of the old Code were applicable. In rejecting the contention of the appellant that the provisions of the Amending Act were not applicable, the Division Bench observed that the above mentioned cases related to attachment proceeding under O. 21, R. 58. The judgment of Narasinga Rao, J., in the above mentioned case related to an attachment subsisting before the enforcement of the amended provisions and consequently the old provisions were held to apply.

The Division Bench therefore held that the decision of Narasinga Rao. J., which was with reference to S. 97 (2) (q) of the Amending Act, which saved the proceedings (Emphasis not found in original - Ed) was quite distinguishable. In my opinion, the Division Bench clearly noticed the distinction between the provisions contained in S. 97 (2) (a) and S. 97 (2) (q) and justified the decision of Narasinga Rao. J., on the basis of such distinction, far from there being any disapproval of the judgment of Narasinga Rao, J., as contended by the learned counsel for the respondents. In my opinion, the observations of the Divison Bench convey approval of the principle on the basis of distinction of the provisions between S. 97 (2) (a) and S. 97 (2) (q). Attention to the Division Bench was also invited to the decision of the Delhi High Court in Syndicate Bank v. Rallies India Limited : AIR1979Delhi40 (to which reference will be made later in this judgment). Referring to the decision of the Delhi High Court, the Division Bench observed as under :-

'In the decision of the Delhi High Court, the learned Judges made a reference to S. 97 (3) and held that the said section deals with contingencies other than those provided by sub-sec (2) of S. 97'.

The above observations support the decision of the Delhi High Court based on the language employed in S. 97 (2) (q). It seems to me therefore, that the decision of Narasinga Rao, J., in N. Tati Reddy v. Syed Meera Hussaini (AIR 1979 Andh Pra 70) has been approved by the Division Bench.

7. An identical question arose in CRP no. 6885 of 1979 before Seetharama Reddy J., in that case, there was an attachment of the properties on 19-9-1960 and a claim petition filed under O. 21, R. 58 was disposed of long after 1-2-1977. Against the order disposing of the claim petition, the above revision petition was filed in 1978 and the question whether the revision petitioner should have filed an appeal as per the Amending Act came up for consideration. In his judgment dt. 10-9-1981, a short note of which appears in (1980) 2 Andh LT 41 (SN) the learned Judge referred to the judgment of Jeevan Reddy, J., and also the judgment of Narasinga Rao, J., above referred. The learned Judge later referred to the judgment of the Division Bench in M. Janikamma v. H. Vajjula Paradesi AIR 1980 Andh Pra 209 above referred. After reference to the above judgment, the learned Judge held that he has no hesitation in agreeing with the ratio as laid down by Narasinga Rao, J. , and also that of the aforesaid Division Bench.

8. A reference has been made to the judgment of the Delhi High Court in Syndicate Bank v. Rallis India Limited : AIR1979Delhi40 which was considered by the Division Bench of this Court. An exactly identical question arose for consideration in this case also. An attachment was made on 21-2-1977 and a claim petition under O. 21, R. 58 was filed on 18-3-1977. The claim petition was decided on 14-9-77. The question was whether the provisions of the old Act are applicable in view of the attachment having been effected on 21-2-77 or the provisions of the Amending Act are applicable on 14-9-77. After dealing with the matter at length, the court held in para 9 that the attachment as well as the objection to the attachment was made long before the commencement of the Amending Act, and therefore, a right, accrued to the parties to the list of file a suit under O. 21, R. 63 CPC prior to amendment. This decision directly supports the proposition canvassed by Sri Ganu. As already stated, the Division Bench of this court referred to this question and explained it with reference to the specific language employed in S. 97 (2) (q).

9. The same principle is set out in the decision of the Allahabad High Court in Shyamadevi v. Ramjas Rolling Mills : AIR1979All16 . Although the provision, which came up for consideration there, is R. 59 (b) of O. 21, the principle, however, is the same.

10. It is not possible to accede to the proposition of Sri S. V. Ramana Reddy that, taking basic constructional aid into consideration, the plain language employed in S. 97 (2) (q) (i) should be ignored. It is also not possible to entertain the submission of Sri Ramana Reddy that the amended provisions are applicable in the present case, because the enquiry into the claim petition itself was obviously made by the trial Court under the amended provisions. Even assuming that the enquiry into the claim petition was done following the procedure under the amended rules, it is not possible to hold that, because of that error, the new rules are applicable disregarding the correct legal position.

11. On a consideration of the specific provisions in S. 97 (2) (q) (i) read with S. 97 (3) of the Amending Act No. 104 of 1976 and having regard to the judicial pronouncements referred to above, I am of the view that the attachment in this case having been effected prior to and subsisting on 1-2-1977 the amended provisions contained in R. 58, which came into force on 1-2-1977, do not come into operation and rights of the parties are governed by the provisions as were in force prior to amendment. There is no dispute that in accordance with unamended provisions, a fuller enquiry into the claim petition could be made only by filing a suit under O. 21, R. 63. I, therefore, hold that the suit bearing O. S. No. 32 of 1977 filed by the appellant is maintainable in law, as the amended provisions relating to the filing of an appeal do not apply.

12. In the result, the appeal is allowed, the order, of the lower appellate Court is set aside and the trial Court is directed to dispose of the suit as expeditiously as possible, as the suit has been pending for six years. In the circumstances of the case, the parties shall bear their own costs.

13. Appeal allowed.


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