1. This is plaintiffs second appeal and is before us on reference by one of us as it raises a question of raw bearing on the effect of, dismissal in default of a claim petition made by defendant No. 1 under Section 325 H.c.p.c. corresponding to Order XXI, Rule 58, C.P.C. on which there is a difference of opinion between the erstwhile Hyderabad High Court and the other High courts of India.
2. Briefly stated, the facts are these plaintiff-appel-lant Suryanarayana, son of Janardnanaswamy brought a sun for declaration of title to the suit house situated in Kishna-pur, Warangal. Disrict against derendant 1, his own paternar grand-mother, and defendant 2, Hanumantha Rao, alreged to be the tenant in occupation. The plaint allegations were that Janardhanaswamy, father of the plaintiff was the owner in possession of the suit property, that after his death, the plaintiff was in possession, that the plain-tiff's father had taken a loan from one Mond. Sherif, who in a suit brought against him for the same, obtained a decree and put it into execution, that Janaronanaswamy was dead By that time, that Defendant 1, his mother, set up her claim to the property under Section 325, Hyderabad Civil Procedure Code corresponding to Under XXI, Rule 58, which claim petition was dismissed for default, on 17-6-49, that the petition was, however, restored on 18-10-49 but that it was eventually once again dismissed for default on 25-7-50 and that alter the dismissal of the, claim petition, the plaintiff got the decree of Mond. Sherif transferred in favour of one Parvala satyavatni, who under an agree-ment undertook to pay off the oecretal amount to Mono Sherif and it was agreed that till such period she shall continue in possession of that suit house as a tenant.
His contention was that Satyavathi was thus in possession of the house as a tenant when defendant 1 brought her suit for possession against defendant 2 alleging that he was her tenant. Defendant No. 2 therein denied that he was her tenant and stated that, he was the tenant of me plaintiff. That suit ended in an ex parte decree against him. Satyavathi, who claimed to be in actual possession filed a claim petition in the execution proceedings, but it was dismissed on 18th Ardibehest, 1354 P. As a result, just three days thereafter the plaintiff filed the present suit for declaration that he is the owner, and that inere-tore defendant 1 cannot execute her decree in that the said decree to which he was in no way a party was not binding on him. Defendant 1 died during the career of the suit. Her legal representatives were brought on record out ot whom only five are represented before us. The legal representatives 1, 3, 4 and 5 are represented by Shri Gopal Rao Tuljapurkar while the legal representative 2 is represented by Shri Sadashiv Rao.
3. That suit was hotly contested. Evidence both oral and documentary was adduced. On the evidence produced which consists of nine witnesses on behalf of the plain-tiff and six on behalf of the defendant besides 24 documents filed en behalf of the plaintiff and 36 documents on behalf of the defendant, We trial court decreed the claim of the plaintiff. But on a consideration of the same evidence, the first appellate Court came to a different conclusion. It found that the plaintiff has tailed to establish his right, title and interest in the house, that defendant 1 in whose name stood the sale deed of the land was the real owner and that that was evident from the will executed by defendant 1's husband in her favour. It may be noticed at this stage that a plea under Section 330, Hyd. C.P.C. corresponding to Order XXI, rule 63 C.p.c. was raised in the written statement itself but neither in the trial Court nor before the appellate Court it seems to have been pressed probably because of the trend of decisions of the erstwhile Hyderabad High court, for the first time, it was seriously urged when the matter came up for consideration fn second appeal, similarly, a further plea was raised In the written statement that at the time when defendant l's claim petition under Section 325 H.C.P.C. corresponding to Order XX, Rule 58 C.P.C. was dismissed there was no subsisting attachment as the execution pen-tion itself was struck off by then at the instance of the decree-holder who stated to the Court on 16-3-50 P. that he had transferred the decree in favour of Satyavathi anddid not therefore wish to press his petition. THIS pleaso material to the case though taken at me earnest opportunity was never pressed at all. Nor was even a vague reference made to it even when the matter was for consideration in second appeal Before this court. It that were done perhaps the matter would not nave come before this full Bench.
It is only now for the first time that this point has been raised and that too at a very late stage when me arguments were about to be concluded. However, as this plea is material in that it goes to the root of the matter, we called for the relevant records. On perusal or the same we are fully satisfied that the plea so taken is amply supported by these records. It may be seen that me order on claim petition of defendant No. 1 was passeu on 26th Khurdad, 1353F, at the request of one Shri Samau Razvi appearing for the claim petitioner that since there has been compromise between the decree-holder and the judgment-debtor, he will not press his claim petition, butwould withdraw the same. This request was made after the execution proceedings were closed at the instance or the decree-holder, who as would appear from the proceedings dated 16th Banman, 1350F. represented to the Court that since the decree had been transferred in favour of another, he (the decree-holder) would not continue these proceedings, it is therefore clear that at the time when the claim petition was dismissed at the instance of the claimant the execution petition had already been dismissed and that was the reason why the claimant withdrew his petition as inquiry into the matter was no longer necessary. It admits of no argument under the clear provisions or Section 321, Hyd. C.P.C. that such dismissal of execution petition automatlcally results in the attachment having ceased.
The provisions of Section 324 of the Hyderabad Civil Procedure Code are somewhat different from the corresponding provision in Order XXI, Rule 57 C.P.C. as amended by the Madras Amendment Act, 1936. According to the former provision If any property has been attached in execution or a decree but no further steps could be taken on account of default of the decree-holder, the Court shall dismiss the application or on sufficient cause shown adjourn it for future hearing and on the dismissal of the petition, attachment shall cease. It is obvious therefore that unlike the provisions in Order XXI, Rule 5/ C.P.C. no specific direction by the Court in relation to vacating the attachment is necessary and the dismissal of the execution petition win result automatically in the vacating of the attachment. Order XXI, Rule 57 C.P.C. no doubt contemplates specific order in that behalf but that makes no difference for what is mandatory under the provision shall, notwithstanding the absence of specific direction, take effect. In fact mere is sufficient authority in support of this proposition. In Mohd. Gaffar v. Mohd. Abdul, AIR 1957 Andh Pra 991 It was observed by this Court that though it may be that the Court did not make an order that the attachment shall cease, when the application was dismissed by reason or the decree-holder's default, the result contemplated in the proviso would follow as a necessary corotlary. That is also the view taken by a Bench of the Madras High Court in Venkat Rao v. Suryarao Bahadur Gam, : AIR1950Mad2 .
However, we are concerned in this case with the provisions of the Hyderabad Civil Procedure Code whereunder no order for vacating the attachment is necessary for such a result must flow from an order of dismissal of the execu- tion petition for default of the decree-holder. It is interefore clear that at the time when the order was made on the claim petition of defendant 1 there was no subsisting attachment. It follows therefore that after the dismissal of the petition, no duty was cast on the petitioner nor was there any necessity for her to have resort to a civil sun. As a matter of fact, when the attachment itself had ceased, the party was put back in the same position as he was in before attachment and as such there could possibly be no cause of action for her to the a suit. The object of a contemplated suit is to establish a right which has been negatived by the claim order and is in substance to set it aside but when the order made on 26th knuroad,, 1350P, in no manner affected or prejudiced her right; and was in sense a determination of her right in the suit property as evidently no such question after the anacnment was vacated could arise or could be justitiably gone into, no occasion for a suit would arise, in this premises, it is unnecessary for us to consider and resolve the difference or opinion between the erstwhile Hyderabad High Court and the other High Courts on the question of the effect or an order of dismissal for default in a claim petition.
4. Now, since the whole case has been transierred to us we have to sec how far the plaintiff has made out his case. This second appeal is governed by the provisions of Section 602, Hyd. C.P.C. as it was preferred prior to the application of the Indian Civil procedure Code to the State of Hyderabad. Under the said provision even the findings on fact given by the court below are at large in second appeal and have to be considered afresh and determined on the evidence in this case. It may be seen that nine witnesses on behalf of the plaintiff and six on behalf or the defendant were examined in the case. The trial Court believed the oral evidence adduced on benan or the plaintiff and decreed the suit. On the other hand, We first appellate Court disbelieved these witnesses on the ground that their statements do not accord with the documentary evidance nor are they consistent with each other. Perhaps it may not be necessary for us to consider this voluminous evidence which has given rise to such difference for we are of opinion that this appeal must fail on a preliminary ground.
The plaintiff's suit is one for declaration of right that he is the owner in possession of the property, it is dectaratory simpliciter, as the plaintiff claims to be in possession. But the defendants denied not merely title but also possession of the plaintiff. Apart from the fact that in previous proceedings his alleged tenant could not successfully make out her case of actual occupation which in turn gave occasion to this suit, it is significant to note that sowbagnyavatnamma the mother of the plff. as his guardian in the suit for maintenance In the Dist. Munsif's Court, Peddapuram clearly stated that Suryanarayana, father of Janaradhanaswami had willed away all his properties and left the suit house in possession of defendant 1 and that the latter was in possession. A copy of this plaint was filed along with the petition dated 3rd Khurdad, 1355F, and the learned Judge, Sadar Adalam, gave an opportunity to the other party (Plaintiff) to file a counter, which the plaintiff failed to file. It is clear from the averments in the said plaint that the plaintiff was not in actual possession of the property. As a matter or tact, on that basis also he had prayed for a decree for maintenance. That suit was originally dismissed by the Dist. Munsif's Court but it is common ground that it was eventually decreed in appeal.
It Is clear that admittedly defendant No. 1 was in possession of the suit property. Of course, in the present sun the plaintiff by production of municipal receipts in evidence of payment of taxes by the plaintiff's father from 1349r. for 3 period of four years has sought to establish that his father while alive was in possession of the property, but this evidence is in sharp conflict with the evidence on record that the plaintiff's father had died in the year 1938 itself. That is further corroborated by the contents of the petition of the plaintiffs mother as his guardian filed in the District Munsifs Court on 20th March, 1943. In these circumstances, the claim that Janardhanswamy was in possession and thereafter the plaintiff is in possession cannot be held to be true. It follows therefore that the plaintiff was not in possession at the time of the suit, it is not his case that the came into possession subsequently. The result is that neither at the time of the suit nor at any time thereafter he has been in possession of the sun house. The question then is whether his suit for declaration is tenable in law. Section 42 of the Specific Relief Act governs the situation, it is not a matter of absolute right to obtain a declaratory decree thereunder.
The language of the provision makes it abundantly clear that the grant of declaratory relief is purely discretionary with the Court -- albeit it is a discretion to be exercised judicially. Proviso to Section 42 at the same time enjoins that no such relief shall be granted where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The promotion is express and explicit and prima facie admits of no exception, it has therefore to be construed strictly. Of course, the promotion cannot go beyond the clear meaning that the language of the proviso would convey. Evidently, the plaintiff is not in possession of the property. As such in the circumstances of the case, ha was able to seek this further letter but he has omitted to do so. As it is his suit is for declaration simpliciter. It is manifest that he is within the prohibition of the proviso to Section 42 of the specific Relief Act. The result is that the Court shall not make the declaration prayed for.
5. The question then is whether appeal should be dismissed on that basis without giving an opportunity to me party to include the relief so omitted. Of course me language of that proviso imposes no obligation except that in the events specified therein, no declaration shall be made. So then if the plaintiff seeks to amend the plaint and include the relief save in exceptional conditions he should be given an opportunity. The trend of decision of the erstwhile Hyderabad High court has been that in such cases an opportunity should always be given to the party concerned to make an amendment in the plaint. That we believe is the most appropriate step as it advances the cause and subserves the interests of justice.
6. We therefore called upon the party to let us know whether he was prepared even at this stage to make me necessary amendment by adding a prayer for consequential relief. The counsel appearing took time to ascertain the same from his client and today stated before us that his client is not prepared to make any amenament as he has to pay enormous court-fee, which it is not possible for him to pay. Under those circumstances, we are left with no other alternative but to dismiss the appeal. The appeal is dismissed. In the circumstances of the case, there will be no order as to costs.