1. The intricate issue that requires to be resolved in this revision petition is whether an order dismissing a claim application under O. 21 R. 58 C. P. C. on the ground that the claimant had no locus-standi to file the application is an order against the claimant attracting o. 21, R. 63 C. P. C.
2. The facts giving rise to this revision petition are these: The petitioner is the claimant in the claim petition. The first respondent is the decree-holder and the second-respondent is the judgement debtor in O. S. No. 74 of 1971 on the file of the Court of the Subordinate judge, Kurnool. The second respondent obtained two decrees one in O. S. No. 28 of 1973 on the file of the Court of the District Munsif, Koilkuntala, against the first respondent. The petitioner obtained transfer of the decree in O. S. No. 12 of 1973 on 31-7-1973. When the petitioner sough to execute the decree in O. S. No. 12 of 1973 and filed execution petition, it was returned by the District Munsif, Koilkuntla, on 7-11-1973 with an endorsement that the decree is attached by the first respondent in E. P. No. 41 of 1973 in O. S. No. 74 of 1971. Then the petitioner filed E. A. No. 237 of 1973 in E. P. No. 41 of 1973 to raise that attachment. It was opposed by the first respondent contending that the petitioner had no locus standi to file the petition as the transfer of the decree had not been recognised by the original court under O. 21 R. 16 c. P. C. Upholding the said contention E. A. No. 237 of 1973 was dismissed. The petitioner then filed E. P. No. 19 of 1974 in O. S. No. 12 of 1973 and E. P. No. 20 of 1974 in O. S. No. 28 of 1973 in the District Munsif's Court, Kilkuntla, praying for recognition of the decrees in the said two suits in his favour. The Court allowed the petitions of 4-11/1974 recognising the transfers. The petitioner, thereafter again filed E. A. No. 199 of 1975, for raising the attachment, The application was opposed. The 2nd remained ex parte. The first respondent alone contested the application. The learned Subordinate judge dismissed the application on the ground that dismissal of a claim petition, even on technical ground is an order adverse, within the meaning of O. 21, R. 63, C. P. C. and that the present application for the same relief as was prayed for in E. A. No. 237 of 1973 was not maintainable since order already passed by the Court in E. A. No. 237 of 1973 became final and conclusive, no claim suit having been preferred under O. 21, R. 63, C. P. C. Hence this revision petition.
3. The ticklish problem that requires to be resolved is, what is mean by an adverse order under o. 21, R. 63, C. P. C. Is an order dismissing a claim application, on the ground that the claimant has no locus standi to maintain the application an adverse order?
4. Order 21, R. 63 provides that where the claim or an objection is preferred, the party 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. 'The claim or objection' referred to in the rule is preferred under O. 21, R. 58, C. P. C., which states that where any claim is preferred or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment the Court shall proceed to investigate the claim or objection provided that it may refuse to investigate the claim or objection when it considers that the claim or objection was designedly or unnecessarily delayed. Order 21, R. 16 provides for the filing of the application by an assignee of a decree for recognition of the assignment, to the Court which passed it. On such recognition alone a decree may be executed by the transferee of the decree in the same manner and subject to the same conditions as if the application was made by such decree-holder.
5. There is no doubt that the petitioner who is an assignee of the decree in O. S. Nos. 12 and 28 of 1973 filed E. A. No. 237 of 1973 before the recognition of the said decrees under O. 21, R. 16, C. P. C. by the Court that passed it. The learned Subordinate Judge dismissed the application on the ground that he had no locus standi to maintain the application before the assignment of the decree was recognised. Until such recognition was granted the petitioner could not pursue any proceedings to execute the decree. He could not have filed also the suit under O. 21, r. 63, C. P. C. since the same objection and the same reason for which E. A. No. 237 of 1973 was dismissed would prevail and prove fatal to the maintainability.
6. This Court in Paniharam Sitharamaiah v. Gubba Archaiah, AIR 1962 Andh Pra 497, held that an assignee of a decree cannot question the attachment of the property in question before applying under O. 21, R. 16 C. P. C. for recognition of the assignment of the decree. In that case, the learned Judges upheld that the dismissal of a claim suit filed under O. 21, R. 63, C. P. C. to set aside an adverse order passed under O. 21, R. 58, C. P. C. on the ground that the assignee-decree-holder derives no right to question the attachment of the property in question without applying to the Court for recognition and execution of the decree under O. 21, R. 16, C. P. C.
7. The dismissal of the first application in E. A. No. 237 of 1973 was apparently due to the defect that the petitioner-assignee had not applied earlier to the Court for recognition and execution of the decree assigned to him. But can it be said that it is an order adverse to the petitioner? There was absolutely no investigation into the claim because it could not be done due to the absence of recognition of the decree under O. 21, R. 16, C. P. C. There was no consideration and valuation of the substance in the claim. Such an order is no order against the claimant affecting his rights which he is entitiled to establish under O. 21, r. 63 C. P. C. The Madras High Court in Lakshmi Ammal v. Kadi Kadiresan Chettiar, AIR 1921 Mad 488 while considering whether an order dismissing a claim application holding that the claim cannot be investigated by the Court is an adverse order, held :
'It did not negative the right set up by the claimant, but it was an order declining to adjudicate either for or against him; and upon the substance of his claim it cannot be treated as an order more against him than against the decree-holder.'
8. In this case, as in that case, in effect, the learned Subordinate Judge declined to investigate then claim on the ground that he had no locus standi to maintain an application. Therefore, it cannot be treated as an order against the decree-holder. This decision was approved by a Full Bench of Madras High Court in Cannanore Bank Ltd., v. V. Pattarakandy Arayanveetil Mahavi, AIR 1942 Mad 41.
9. The learned counsel for the respondent, however, placing reliance on the Full Bench decision in Cannanore Bank's case (AIR 1942 Mad 41) (supra) contended that an order passed under O. 21, R. 58, C. P. C. even without investigation is an adverse order. In that case, Leach, C. J., while considering whether an order 'petition not pressed. It is dismissed' is an adverse order under O. 21, R. 63, C. P. C. observed :
'The test is whether the order is 'against' the claimant or the decree-holder, but that does not mean that the order must involve an adjudication on the merits after investigation. Even an order of dismissal for default will fall within the rule' so long as it remains in force it is obviously adverse to the claimant. But if the person objecting to the attachment does not ask for his claim to be investigated and the order on the petition is merely that it be recorded it cannot be said that this is an order 'against' him. In such a case the application will not fall within R. 58; see P R. Ayya Pattar v. Manakkal Karnavan (1919 Mad WN 805) : (AIR 1920 Mad 822) : again the petition may contain a prayer not contemplated by R. 58, or it may have been presented after the Court has sold the attached property and therefore the Court has no longer jurisdiction to entertain it.'
10. I do not think that, that decision is of any assistance to the learned counsel. The learned Judge observed that the dismissal of a petition not contemplated by R. 58 or a petition presented after the Court has sold the attached property to entertain it cannot be regarded as an adverse order. In this case also the petitioner had no right to present the application under O. 21, R. 58, C. P. C., when he presented the application. I have, therefore, no doubt or hesitation in holding that an order dismissing the claim application on the ground that the claimant had no locus standi to maintain the application is not an adverse order within the scope of O. 21, R. 63, C. P. C.
11. The order of the learned Subordinate Judge in E. A. No. 199 of 1975 in E. P. No. 41 of 1973 in O. S. No. 74 of 1971 is therefore, set aside. He shall now restore the said E. A. to file and proceed to investigate the claim and dispose it of according to law. The Civil Revision Petition is accordingly allowed with costs.
12. Petition allowed.