1. The principle question of law that has to be answered in this case is whether Art. 11 of the Limitation Act (1908) would apply to a suit brought to challenge an order dismissing a claim petition made to an attachment directed before judgment. Since the suit, out of which the present Second Appeal arises, was instituted in 1960, it is the Act of 1908 that is applicable to it.
2. Now, I will refer to the parties as they were arrayed in the suit O.S. No. 275/60 in the District Munsif's Court at Kakinada. The defendant in the suit, filed O.S. No. 349/55 against one Venka Bhaskrarao for recovery of money and pending the suit he got attached some properties in the name of the said Bhaskararao in I.A. No. 26/56. The plaintiff then filed I.A. No. 908/56 to raise the order of attachment. His contention was that the property really belonged to him but stood in the name of Bhaskararao was made a party to the claim petition. It may also be mentioned that Bhaskararao had earlier executed a deed of relinquishment in favour of the plaintiff. Bhaskararao did not take any interest in the claim proceeding and despite the plaintiff's participation in it, it was rejected on 30-8-1958. The suit was decreed exactly one year later on 30-8-1959. The present suit to set aside the order dismissing the claim petition on 30-8-1958 was filed on 5-8-1960.
3. There were three principal defences to the suit. They are : (1) It was barred by limitation because it was filed more than one year after 30-8-1958, (2) The suit was not maintainable because the judgment-debtor was not made a party to it and (3) The plea of benami was false. All these three objections did not find acceptance at the hands of both the lower courts. They repelled the question of limitation as well as the one relating to maintainability and on a consideration of the evidence, found that the property stood really benami in the name of Bhaskararao though it belonged to the plaintiff. In that view, the suit was decreed by both the courts. Hence the present second appeal by the defendant.
4. Shri Ratna Sastry in a very forceful argument first maintain that the suit is hopelessly barred by limitation since it was not filed within one year after 30-8-1958, on which date the claim petition was dismissed. This is a case to which Article 11 of the old Limitation Act applies and so, the suit should have been filed within one year from the date of the dismissal of the claim petition. In order to test this contention, let me read that Article in its entirety, including clauses (1) and (2) of Article 11 :
Description of suit Period of Time from which period limitation. begins to run11. By a person, against One year. The date ofwhom any of the following the order.orders has been made toestablish the right which he claims to the propertycomprised in the order.(1) Order under the Civil Procedure Code, 1908, on aclaim preferred to, or anobjection made to theattachment of propertyattached in execution of adecree. (2) Order under Section28 of the Presidency Small Causes Courts Act, 1882.
The orders referred to in paragraph (2) of the Article have no relevancy to the present discussion. What is sought to be applied is only paragraph (1) namely, 'order under the Code of Civil Procedure 1908, on a claim preferred to or an objection made to the attachment of, property attached in execution of a decree.' It is not the case of the defendant (appellant) that there was another attachment after the decree was passed and it was only thereafter the execution proceeded. Going by the Language of the Article, it applies only to orders on objection made to the attachment of properties which are attached in execution of a decree. There is no attachment in the present case to execution of a decree. So, going by the language of Article 11, it should be held that it has no application to the present order passed on an objection raised to an attachment before judgment. There is, however, Rule 11 of Order 38 which is relied on by Sri Sastry. It merely says that property attached before judgment need not be attached in execution of a decree. So, a plaintiff who had already got the property attached during the pendency of the suit and who has been successful in obtaining a decree thereon, need not get the property reattached for proceeding against it in execution of the decree. This is provided by the Code itself. But, does this provision make it an attachment in execution of a decree? At any rate, the language of Art. 11 does not by itself lend support to this extension of its meaning.
5. I may here refer to a decision of a Division Bench of this Court in Eswarappa v. Krishna Reddy, 0065/1964 : AIR1964AP99 . In that case also there was an attachment before judgment of five items of property. A claim was put forward to items 1, 2 and 3 on the ground that they were separate properties of the 2nd defendant. The claim was accepted and attachment was raised. The aggrieved plaintiff carried the matter in appeal to the District Court, Kurnool. The appellate Court allowed the appeal and made the attachment of the disputed items absolute observing that it was open to the 2nd defendant to establish his absolute rights to the properties by a separate suit. Nevertheless, the 2nd defendant did not file any suit to establish his rights to these properties before the passing of the decree. The plaintiff, after securing a decree, sought to proceed against all the five items attached. At that stage, the 2nd defendant filed an execution application under Section 47 claiming all the items of property as his own. The executing court negatived his contention and the 2nd defendant preferred an appeal to the Subordinate Judge's Court at Kurnool. The appellate Court however held that they were the separate properties of the 2nd defendant and so, none of the items could be attached. A Civil Miscellaneous Second Appeal was filed and a Division Bench considered it in this judgment. The principal contention raised was that sine the suit was not filed within one year from the date of the order in the C.M.A. the plaintiff's application under Section 47 was not maintainable. The learned Judge took the view that since the 2nd defendant did not file a suit within one year of the order in the C.M.A. the execution could proceed against items 1, 2 and 5 also. Against the single Judge's decision, an L.P.A. was filed. In support of the appeal, it was contended that the view of the learned single Judge was erroneous as it was based on the misunderstanding of the Full Bench decision in Arunachalam Chetty v. Periasami Servai, ILR 44 Mad 902 = (AIR 1921 Mad 163) (FB). Chandra Reddy, C.J. speaking for the Division Bench held that the observations relied on by the learned single Judge from Arunachalam Chetty v. Periaswami Servai, ILR 44 Mad 902 = (AIR 1921 Mad 163)(FB) were not relevant in the context of the case before them. Since in the case the execution was levied after the decree was passed and within a short time, thereof objections were formulated under Section 47 C.P.C. creditor to proceed against these properties, the view taken by the Full Bench did not apply. It was further observed that a plain reading of Art. 11 of the Limitation Act would make it clear that it would not apply to a claim made under Order 33, Rule 8, C.P.C. If Article 11 is not attracted to the case of attachment before judgment and not in execution of the decree, there was no other specific Article in the Limitation Act and as such Art. 120 would spring into operation. It is exactly the view I am inclined to take and which has been taken by the courts below.
6. There are two other decisions which support this view. A Division Bench of Calcutta High Court in Dhan Bibi v. Mrinalini Ghossh, AIR 1945 Cal 449 held :
'Where a claim to a property attached before judgment is made by legal representatives of defendant and rejected before the decree is passed, the question relating to the title to the property cannot be raised under Section 47. The unsuccessful claimant would have to file a suit for establishing his right to the property. It is immaterial whether the objection was dismissed without investigation on merits. To such a suit, neither Art. 11 nor Art. 13 but Art. 120 would apply and the unsuccessful claimant would have six years' time from the date of the adverse order passed on the claim' the learned Judges of the Division Bench discussed the entire case law while coming to this conclusion.
7. A Division Bench of Patna High Court also held in Mr. Babbal Kumari v. Mulchand, AIR 1934 Pat 580, thus :--
'Although the provisions of Rules 58 to 63, Order 21 may be applied to claims or objections made in attachment before judgment, no period of limitation is prescribed by Rule 63 Order 21, and the Rule in Art. 11 of the Schedule to the Limitation Act is expressly limited to claims or objections made to the attachment of property attached in execution of a decree. No special provision is made for suits of this nature arising out of objections to attachment before judgment so that Article 120 of the Limitation Act, must be held to apply to such suits.'
In coming to this conclusion, it is significant to note that the Division Bench relied on the Full Bench decision of the Madras High Court in Arunachalam Chetty v. Periasami Servai, ILR 44 Mad 902 Cor to 41 Mad LJ 252 = (AIR 1921 Mad 163) (FB).
8. I will have refer to the Full Bench decision in Arunachalam Chetty v. Periasami Servai, ILR 44 Mad 902 Cor to 41 Mad LJ 252 = (AIR 1921 Mad 163) (FB) Wallis C.J. speaking for himself and for Naper and Krishnan JJ., observed :
'I was first disposed to think that even an attachment before judgment might be regarded as an attachment 'in execution of a decree' within the meaning of the new Article (Art. 11) seeing that it is a step taken purely for purposes of execution and that we should best give effect to the real intention of the Legislature by so holding. On a further consideration of the subject I think that such a construction is inadmissible to view of the fact that Section 246 of the Code 1859 referred to property 'which may have been attached in execution of a decree or under any order for attachment passed before judgment and that Section 86 which has been reproduced in the subsequent Codes and now appears as Order 38, Rule 8 provided that claims to property attached before judgment should be investigated in the same manner as claims to property attached in execution of a decree. As it is well settled that the Limitation Act and the Code are to be read together. I have reluctantly come to the conclusion that we should not be justified in laying down generally that property attached before judgment that property execution of a decree', within the meaning of the present Article 11.'
Spencer J., with whom Kumaraswami Sastri and Ramasami JJ, agree, in his separate judgment took notice of the fact that in the appeals before them, the claims preferred by the 1st defendant in each suit were put in after the properties were brought to sale in the execution proceedings. Then the learned Judge observed: 'I find no difficulty in classing such a claim under heading 'Of a claim preferred to property attached in execution of a decree:, which are the words of Art. 11 of the 1st Schedule, Indian Limitation Act'. It was only in those circumstances, the learned Judges held that Art. 11 was applicable.
9. Therefore, either by a plain reading of Article 11 or by the legal precedents, I am inclined to hold that Article 11 does not apply to orders passed on attachments made before judgments. Since it is not the case that any other Article would apply, it must necessarily follow that the residuary Article that is 120 which prescribes six years as the period of limitation should govern. Since the present suit was file on 5-8-1960 within six years of the dismissal of the claim petition on 30-3-1958. I am of the opinion that the suit was filed of the on that the suit was filed in time.
I must however take note of two or three decisions placed before me by Shri Shastri. The first of them is the Full Bench decision of the Madras High Court in Arunachalam Chetty v. Periasami Servai, ILR 44 Mad 902 = (AIR 1921 Mad 163) (FB) to which I already referred. The other decision in Y. Mallikharjuna Prasada Naidu v. M. Virayya, 33 Mad LJ 231 = (AIR 1918 Mad 26) (FB) where another Full Bench had to consider the question : 'does Rule 63 or Order 21, C.P.C. apply to orders on claims preferred to property attached before judgment?' The Full Bench answered the question in the affirmative. So, from this emanates that an aggrieved person can challenge the order on his claim preferred to property attached before judgment only under the provisions of Order 21, Rule 63, C.P.C. There is no dispute about this rule laid down by the Full Bench in Y. Mallikharjuna Prasada Naidu v. M. Virayya 35 Mad LJ 231 = (AIR 1918 Mad 26) (FB). The plaintiff himself filed the present suit on the assumption that Order 21, Rule 63, C.P.C. applies to his case. But that does not advance the contention of the defendant because Order 21, Rule 63, C.P.C. in itself does not contain any period of limitation. Whether a suit filed under that provision comes within the scope of Art. 11 or not is the question. If it is in respect of an order passed on the objection made to property attached in execution of a decree, then, Art. 11 applies. Otherwise, it does not. So, the principle laid down in Y. Mallikharjuna Prasada Naidu v. M. Virayya, 35 Mad LJ 231 = (AIR 1918 Mad 26) (FB) does not advance the case of the defendant.
10. Sri Ratna Sastry also relies upon a Bench decision in Andalamma v. Natesan, AIR 1949 Mad 114. Rajamanner, Officiating C.J. speaking for the Court said that no question of applicability of Art. 120 arises when the suit is under Order 21, Rule 62, C.P.C. to set aside an order passed in a claim petition. But, there the attachment was in execution of a decree. when, the claim petition was filed, the question which arose before the Division Bench were in respect of sham and nominal character of the sale deed relied on by the claimant, and adverse possession and acquisition of title by prescription. The Division Bench held that even then Art. 11 alone would apply and not Art. 120. The facts of that case speak for themselves. It was clearly a case of attachment in execution of a decree and so it has no bearing on the case which is now on hand
11. I am therefore of the opinion that the decisions relied on by Shri Ratna Sastry do not help in his contention. I consequently, uphold the view taken by the courts below that Art. 11 does not govern the case and when it does not, it is only Art. 120 that applies. So, the suit is in time.
12. The 2nd question is that since the judgment-debtor was not made a party to the suit, it was not maintainable. Relying on the single Judge's decision in Suppan Asari v. Alima Bibi, AIR 1934 Mad 587, the courts below held that the judgment-debtor was not a necessary party, in a suit under Order 21, Rule 62, C.P.C. That apart, in this particular case the judgment-debtor is not at al a necessary party in view of the peculiar circumstances. Even before the attachment was effected before the judgment, the ostensible owner has relinquished his right to the property to the plaintiff. So, now, he cannot turn round and question the relinquishment. Further, when he was made a party to the claim proceeding, he kept quiet, without setting up any particular defence against the plaintiff's claim. Therefore, there is no question of his being a necessary party to the present suit. So, this contention also is repelled.
13. The last and third contention that is raised on behalf of the appellant is that the oral evidence is not at all considered by the appellate Court and so this vitiates the judgment, particularly in view of the remand order passed by this court on the earlier occasion. On a reading of the judgment under appeal, I find that a very careful scrutiny of the documentary evidence has been made. Gathering the tenor of the oral evidence from its discussion by the trial court, I find it is nothing more than supporting the documentary evidence in other words, the oral evidence has no significance de hors the documentary evidence. I find that all the material and relevant documentary evidence has been considered by the appellate Court while agreeing with the trial court's view, I am not, therefore, prepared to find fault with the judgment of the appellate Court on this score.
14. Thus, all the three contentions raised before me fail and the Second Appeal is dismissed. Having regard tot he circumstances of the case, I direct the parties to pay their own costs in the second appeal. No leave.
15. Appeal dismissed.