1. The plaintiff is the appellant. This appeal arises out of a suit for eviction filed by the plaintiff Mallela Venkata Subbamma alleging that she and the 1st defendant are the children of one Jammula Seshayya, that at the time of her marriage two acres of wet land were promised to be given to her husband but no document was executed in respect of the gift of the said land and that the father and the 1st defendant were in possession of the lands. Later on under an arrangement come to amongst the father, the son and the daughter the plaintiff, it was agreed that Seshayya the father should be in enjoyment of all the properties during his life-time and that the plaintiff should get a vested remainder in 2 acres 98 cents of wet land in survey No. D-12/6 in Perakalapudi village in Tenali taluk and also in some dry land, that the 1st defendant also was to get 1 acre 90 cents of wet land.
In pursuance of this arrangement it is stated that two gift deeds were executed on 27-8-1942, one by the father and son in favour of the plaintiff and the other by the father Seshayya in favour of the son. It is stated that some time after, the 1st defendant got a collusive suit filed by the 3rd defendant, the mother-in-law's sister of the 1st defendant against Seshayya and the 1st defendant purporting to be on the basis of the promissory note said to have been executed by Seshayya, the father and attached the properties covered by the gift in favour of the plaintiff.
This was O. S. No. 207 of 1942 on the file of the Court of the Dist. Munsif, Tenali. Seshayya was ex parte at the trial, although he filed a written statement questioning the execution of the promissory note by him and contending that it was a fabricated document. The 1st defendant, however, admitted the claim. An ex parte decree as against Seshayya and the 1st defendant was passed on 2-4-1943.
2. The property was attached in execution of the decree and the plaintiff herein filed a claim petition on 1-1-1943, Ex. B-12. This claim, petition was disallowed on the ground that she was not in possession. The Munsif rejected the claim petition holding that there was no proof that the property was not liable to be attached. Vide Ex. A-31 dated 5-4-1943.
3. Thereupon the plaintiff filed a suit in the Court of the District Munsif, Tenali being O. S. No. 269 of 1943 for setting aside the above order in I. A. No. 49 of 1943 in O. S. No. 207/42. This suit was dismissed with costs on 26-4-1944 the plaintiff being absent. Her advocate appears to have been present. The suit having been dismissed the properties under attachment were brought to sale.
4. Seshayya the father died in July 1946. The 1st defendant and his lessees were in possession of the properties.
5. The present suit was filed as against the purchaser at the sale in O. S. No. 207/42 who was said to be the benamidar for the 1st defendant and the 1st defendant, and also the plaintiff in O. Section 207 of 1942, being defendant No. 3 in this suit Various contentions were raised by the contesting defendants, and the formidable objection was that the order in the claim petition acted as a bar to the present suit in view of the fact that the subsequent suit brought by the plaintiff O. S. 269/43 to get the order set aside was also dismissed. The learned Additional Subordinate Judge dismissed the suit. Hence this appeal.
6. The short point to be considered in this appeal is as to whether the dismissal of the suit under Order 21, Rule 63, C. P. C., filed by the plaintiff was not a bar to the presenting of the present claim. It is argued on behalf of the plaintiff that the dismissal of the objection petition and the subsequent dismissal of the suit filed thereafter could not obviously operate as a bar to the present suit for the reason that on the date of those proceedings the plaintiff had no right to the property for what she was entitled to was only a vested remainder. Referring to Order 21, Rule 59, C. P. C., it was further urged that the word 'interest' contained therein meant an interest which would answer an attachment and the claim that is made is only a claim to ward off attachment. Learned Counsel relied upon Radhabai v. Gopal, AIR 1944 Bom 50.
In this case as would be evident from the narration of facts the amount claimed had been paid and the question relating to the objection petition was only of academical interest. This case, therefore, cannot help the appellant. In the next case relied upon by the appellant viz., Ramaswami Goundan v. Karuppa Mudali, 54 Mad LJ 321: (AIR 1928 Mad 163), Tiruvenkata Chari J., was of the opinion that the scope of the investigation under Order 21, Rules 59 to 61 did not envisage any enquiry into title. That the language of the rules is not susceptible of such an interpretation has been pointed out in the full bench decision in Ramaswami Chettiar v. Mallappa Reddiar, 39 Mad LJ 350: (AIR 1920 Mad 748). While adverting to the Privy Council case of Sardharilal v. Ambika Pershad, 15 Ind App 123, Wallis C. J., observed as follows:
'The effect of the judgment in a suit under Section 283 new Rule 63 (of Order 21) as stated by the Privy Council in ILR 15 Ind App 123, and as appears from the provisions of the Code which I have examined, is to settle, as between the attaching-decree-holder and the claimant, the question of title arising in execution,'
7. In the case of Masina Bavamma v. Yendru Papanna, 1937-1 Mad LJ 133: (AIR 1936 Mad 971), Venkatraman Rao J., while dealing with this question observed as follows;
'The words 'establish the right' in Rule 63 of Order 21, were held to indicate that the plaintiff has to establish his title to the property in dispute before he can get the relief he wants, viz., the release of the property from attachment.'
8. It is obvious that in order to prove that he has a right to the property in dispute and that it is, therefore not liable to attachment, consideration of his title as well as possession will be relevant. The two questions cannot be separated one from the other, The matter came to be considered in the case of Akkammal v. Komaraswami Chettiar, 1942-2 Mad LJ 315; (AIR 1943 Mad 36), wherein Leach C. J. and Byers J., expressed the opinion to the following effect. Rule 63 says that the order passed on the claim petition shall be conclusive unless the petitioner files a suit within one year to establish the right which he claims.
The fact that the decree-holder may file another suit, within 12 months to establish the claim which he claims does not relieve the objector from the necessity of complying with Rule 63. The learned Judges were of the opinion that the provisions of Rule 63 were mandatory and the question of title would be conclusive if a claim petition were dismissed and a suit not brought within 12 months from the date of the dismissal. The effect of Rule 63 of Order 21 is to settle as between the attaching decree-holder and the claimant the question of title arising in execution. This is well supported by the decision of the Privy Council in 15 Ind App 123 already referred to.
9. The right that the plaintiff claimed in thiscase was her right of vested remainder and necessarily the question of investigation of this particular title of the plaintiff was relevant in order tofind out whether possession was on the basis ofthis title. We are therefore of the opinion thatthe judgment of the lower court should stand andthis appeal dismissed with costs of the contestingrespondents one set.